Massachusetts Board of Higher Education and Massachusetts College Law Enforcement Association and AFSCME, Council 93, Local 1067, AFL-CIO

COMMONWEALTH OF MASSACHUSETTS

DIVISION OF LABOR RELATIONS

BEFORE THE COMMONWEALTH EMPLOYMENT RELATIONS BOARD

Case No.:  SCR-04-2256

Parties:  Massachusetts Board of Higher Education and Massachusetts College Law Enforcement Association and AFSCME, Council 93, Local 1067, AFL-CIO

Board Members Participating:        Marjorie F. Wittner, Chair

                                                              Elizabeth Neumeier, Board Member

Appearing:   Peter Tsaffaris, Esq. – Representing the Massachusetts Board of Higher Education

                        Brian Simoneau, Esq. – Representing the Massachusetts College Law Enforcement Association

                        Erin Goodwin, Esq. – Representing AFSCME, Council 93, Local 1067

Decision Date:  December 5, 2008

DECISION[1]

Statement of the Case

            On October 15, 2004, the Massachusetts College Law Enforcement Association (Association) filed a petition with the Board seeking to sever Campus Police Officers I and II from a bargaining unit of maintenance and security workers at numerous state and community colleges governed by the Massachusetts Board of Higher Education (Higher Ed. Board).  On November 29, 2004, Local 1067 of AFSCME, Council 93, AFL-CIO (Council 93) filed an unopposed motion to intervene, which an agent of the Board subsequently allowed.

            On November 22, 2004, the Association amended its petition to seek a bargaining unit of all full-time and regular part-time community college police officers and sergeants who are employed by the Higher Ed. Board, excluding lieutenants, captains, deputy chiefs, and chiefs. 

            On December 22, 2004, March 11, 2005, March 21, 2005, March 28, 2005, and March 31, 2005, a duly-designated Board hearing officer, Victor Forberger, Esq. (Hearing Officer), conducted a hearing at which all parties had the opportunity to be heard, to examine witnesses, and to introduce evidence. 

            On March 3, 2003, Council 93 filed a second motion to dismiss the petition,[2] arguing that a directed verdict was appropriate in light of the Association's opening statement on the first day of hearing.  The Board denied the motion to dismiss with prejudice on March 24, 2005.  On March 8, 2005, the Association filed a motion to annul Council 93's intervention in this matter.  The Board denied the Association's motion with prejudice on March 24, 2005.

            The Association and Council 93 filed their post-hearing briefs on April 21, 2005.  The Higher Ed. Board did not submit a post-hearing brief in this matter.

Findings of Fact[3]

            The Association, the Higher Ed. Board, and Council 93 stipulated to the following facts:

1. The Board of Higher Education is a public employer within the meaning of Section 1 of the Law.
2. Local 1067 of AFSCME Council 93, AFL-CIO, is an employee organization within the meaning of Section 1 of the Law.
3. The Massachusetts College Law Enforcement Association is an employee organization within the meaning of Section 1 of the Law.
4. Campus police officers carry firearms at the following colleges: Bridgewater State College, Salem State College, Westfield State College, Massasoit Community College, and Fitchburg State College. Campus police officers do not carry firearms at any other colleges.
5. The issuance of firearms is controlled solely by the Board of Trustees of the individual colleges and not a subject addressed through the collective bargaining process.
6. The issue of "Group 4" retirement is addressed solely through the Legislature and not through the collective bargaining process.
7. M.G.L. c.41, § 108L, the so-called "Quinn Bill," is inapplicable to campus police officers and could not be applicable to them because the aforesaid statute applies by its terms only to police officers of cities and towns.
8. Because application of the provisions of the Quinn Bill is a matter of legislation, the benefits available through this law cannot be attained through collective bargaining.

            The following facts are derived from the testimonial and documentary evidence introduced during the hearing.

Council 93 and the Higher Ed. Board

            The Higher Ed. Board is the governing authority for fifteen community colleges and nine state colleges.[4]  Campus police officers I and II as well as institutional security officers I, II, III, and IV are part of a unit of maintenance and security personnel (consisting of 1,169 employees) at these colleges represented by Council 93.  Besides campus police officers and institutional security officers, this bargaining unit includes power plant engineers (2nd and 3rd class), electricians (I and II), utility plant operators, and numerous other craft and maintenance positions.  There is also a clerical and technical unit (consisting of 1,776 employees) at these colleges represented by Council 93, which includes communications dispatchers (I and II), clerks (I through VI), accountants (I through V), and numerous other positions.  In 1976, in Case Nos. SCR-2016 and SCR-2050, the Board certified the clerical and technical bargaining unit as Unit I and the maintenance and security personnel as Unit II, respectively.  At the time, campus police officers voted in the Unit II elections.[5]  Employees in Unit I have a regular work week of 37.5 hours, while Unit II employees have a regular work week of 40 hours. Table 1, below, identifies the colleges in Units I and II, the location of each campus in Massachusetts, and the number of campus police officers and institutional security officers currently at each campus. 

Table 1:  Community and state colleges in the Massachusetts public education system and the number of campus police officers (CPOs) and institutional security officers (ISOs) at each campus

Campus Police Officers

            Campus police officers are sworn police officers employed at twenty state and community colleges.  As with city, town, or state police officers, they are responsible for protecting individual's property and life, for upholding state law, and for apprehending those individuals who violate state or local criminal law.  Campus police officers are also responsible for enforcing various campus rules and regulations.

            Prior to their appointment, candidates for the position of campus police officer undergo a background check, including fingerprinting, and they must pass a physical agility test, medical examination, as well as written and oral examinations.  In preparation for this testing, campus police officer candidates must complete an extensive course of study at a police training facility.[6]  At these training facilities, recruits undertake a daily physical training regimen and complete coursework in emergency vehicle
operation, police officer technique and practices, use of various weapons available to them, handling of evidence, and various criminal law matters.

            After completing this training, campus police officers continue to undergo in-service training to maintain their current job skills or to take on new responsibilities, as determined by state law and local campus police department requirements and procedures.  This training, for example, has included courses in interrogation of suspects, officer safety, defensive tactics, workplace violence, criminal law, using breathalyzers, and using of radar guns for assessing speed limits.  Campus police officers also complete continuing education and training in handling various weapons.[7]  The exact requirements campus police officers must meet varies from campus to campus and the specific job responsibilities of the campus police officer in question.[8]  Almost all of the training and continuing education campus police officers undergo is paid for by the campus police department.

            As already noted, campus police officers are divided into two classifications, I and II.  Those employees in the campus police officer II classification usually have a greater degree of responsibility than those in the campus police officer I classification.  On some campuses, campus police officer IIs have been given the rank of sergeant and have responsibility for a particular shift or a division within the campus police department, such as traffic or detectives.  On other campuses, campus police officer IIs have specific responsibilities regarding certain campus security operations, like serving as a police prosecutor.  Lieutenants and captains, who belong to a bargaining unit represented by the Association of Professional Administrators, supervise both classifications of campus police officers.  Campus police chiefs are not part of any bargaining unit.         

            Campus police officers are generally responsible for patrolling college campuses, including the grounds, buildings and college vehicles associated with a particular campus.  Campus police officers investigate crimes by gathering evidence and interviewing witnesses and suspects and may testify in courts of law regarding those efforts.  They issue citations and make arrests when, in their discretion, it is appropriate, take individuals into protective custody (e.g., when incapacitated by alcohol), and serve arrest or search warrants for which probable cause has been found.  On some colleges, campus police officers also are responsible for monitoring parking lots, enforcing traffic laws, investigating accidents, and directing traffic.[9]  Where the campus police department has developed a community policing program, campus police officers may attend faculty and staff meetings to speak about recent criminal activities or concerns on the campus.  Finally, in light of their law enforcement responsibilities, campus police officers often find themselves in court testifying and submitting paperwork, and more than a few serve as police prosecutors for civil traffic violations and initial arraignments in criminal matters.

            In the course of this work, campus police officers may be exposed to blood-born illnesses or other biological contaminants.  Accordingly, campus police officers are trained to handle these risks in the course of their work.  Campus police officers also must respond to physical force used against them when apprehending individuals. 

            As sworn police officers, campus police officers can direct the actions of citizens — including Unit I and II members — in order to fulfill their law enforcement responsibilities (e.g., commanding someone to exit her car or to stop running).  Furthermore, on a college campus any individual, including members of a college's governing board or the Higher Ed. Board, are subject to arrest by campus police officers or the filing of criminal complaints in Massachusetts courts for criminal prosecution.  In carrying out their job duties, campus police officers cooperate with employees of the Higher Ed. Board who do not work specifically in campus police departments.  For example, a campus police officer may provide a ride to a campus nurse to the scene of a car accident and follow the nurse's directions in responding to the medical concerns of those involved in the accident.  Similarly, the campus police officer might request assistance from maintenance employees in cleaning up the scene of the car accident.

            Some college campuses employ dispatchers who direct campus police officers to particular places on campuses as calls for police assistance are made.  Campus police officers may request information from the dispatchers, such as driving history, when investigating accidents or other matters.  Additionally, campus police officers work with their counterparts in state or municipal police departments.  For example, in recent years, playoff victories by the Boston Red Sox and the New England Patriots have led to general disturbances on some college campuses.  In those situations, campus police officers have called on other police departments and campus co-workers, like institutional security officers and resident assistants, in controlling student crowds.  Campus police officers may request assistance from municipal or other police departments when serving arrests or search warrants outside their particular college campus.  Additionally, several campuses do not have their own jail or holding areas for arrestees.  In these circumstances, the campus police officers transport arrestees to municipal, county, or state jail facilities and to clerk magistrates, if available at the time of booking, for a bail hearing. 

            The specific nature of a particular campus police officer's job responsibilities depends on the issues at each college campus and the officer's prior training and certifications.  Certifications and training held by a campus police officer at one college campus may be unnecessary at another college campus.  For example, a firearms instructor may work at a college where campus police officers carry firearms but not at a campus where firearms are not required.  Additionally, at some colleges the campus police department may ask campus police officers to apply for appointment as special police officers with the local municipality or as deputy sheriffs with the county sheriff's department. 

            Campus police officers regularly work shifts during the day, evening, or night hours,[10] and they usually work ten to twenty hours of overtime beyond their regularly-scheduled hours each week.[11]  At some college campuses, the campus police department has developed specific procedures for how campus police officers volunteer for this additional overtime.  Since 2000, Council 93 has bargained with local campus officials regarding how overtime is to be assigned to campus police officers at each particular campus.  At Salem State College and Massasoit Community College, for example, the agreements Council 93 negotiated provide a procedure for how overtime can be assigned voluntarily and specify the requirements for when the campus police department can mandate overtime in order to maintain minimum staffing levels. These agreements, in part, stopped the practice at some campuses of leaving campus police officer shifts vacant.  However, several college campuses still contract out part of their campus police operations to independent third-party companies that provide security for a particular shift or area of a campus.

            Campus police officers are part of a paramilitary command structure where higher ranks connote greater authority.  Rank is indicated by military insignia — stars, bars, and chevrons — displayed on uniforms, and superiors must be addressed by rank.  Campus police officers wear distinctive uniforms, badges, name tags, and possess specialized tools and equipment usually located on their utility belts, including handcuffs, rubber gloves, and weapons of various kinds, e.g., oleo-resin capsicum (pepper) spray, batons, and possibly firearms.[12]  Campus police officers are also required to wear bullet-resistant body armor.  At some colleges, campus police officers drive specially marked police vehicles or mountain bikes.

            On several occasions, campus police officers in the course of their job duties have taken police action against other college employees.  In 2001, a campus police officer, David Bickford (Bickford), found an off-duty maintenance employee and Unit II member at Massasoit Community College filling his personal automobile with gasoline reserved for campus vehicles.  Bickford filed criminal charges against the individual,[13] and he learned from his Chief that Massasoit Community College had suspended that individual for sixty days.  Bickford also filed charges against a member of Council 93[14]and a college employee for indecent assault and battery against a co-worker.  That unit member pled to a charge of assault and battery and was barred by the judge presiding over his criminal case from entering the college campus as long as the co-worker in question was employed by the college.  

            Additionally, Bickford investigated two maintenance employees for fondling a female student.[15]  While no criminal charges arose from that investigation, Bickford learned that the college had suspended the two employees with pay during the investigation and had suspended them for one day without pay as a result of Bickford's investigation.  Finally, Bickford has stopped and towed unit members' unregistered or uninsured vehicles and has, on occasion, filed criminal charges against the drivers.[16]

            At Framingham State College, a campus police officer investigated and charged a maintenance employee and Unit II member for committing open and gross lewdness and lascivious behavior on March 7, 2003 while off-duty.  The campus police officer testified against the Unit II member in question at his criminal trial. The individual was found guilty, and the campus police officer learned that Framingham State College had terminated the individual's employment. 

            At Westfield State College, a campus police officer cited the president of Local 1067, Christopher Olsen (Olsen), for failing to stay in marked lanes and for failing to stay on the right-hand side of the road when driving.  Olsen has appealed those citations, and the campus police officer might have to testify at a later proceeding.  The traffic citations have had no impact on Olsen's employment with the Higher Ed. Board, however.  Campus police officers at Westfield State College also have investigated employees for stealing campus property and for violating a student's rights.[17]

            At Salem State College, a campus police officer served as the prosecutor against a college employee for a motor vehicle violation.[18]  The employee in question filed a grievance in response.[19]  That campus police officer, a detective, has investigated approximately a dozen other unit members for larceny and motor vehicle violations since 1995.  One investigation concerned the theft of approximately $90,000 in electronic equipment.  Through interviews, informants, and covert video surveillance, the detective investigated custodians represented by Council 93 and obtained and executed search warrants on the homes of these Unit II members in an effort to recover some of the stolen property.  Criminal charges were filed against the custodians, and the campus police officer learned that the college had terminated their employment. 

            At Springfield Technical Community College, a campus police officer investigated college employees in July of 2004 about the theft of money from a campus office.  In the course of that investigation, the campus police officer asked several employees to submit voluntarily to a polygraph examination.  The primary suspect in the case refused to take the polygraph examination and subsequently resigned.[20]  In June of 2004, this same campus police officer investigated shipping and receiving employees about items missing from a loading dock.  In the course of that investigation, a campus vice-president of administration asked the campus police officer to "shake [a carpenter] up" that the two had observed via video camera outside his assigned work area.  The campus vice-president told the campus police officer that the carpenter had time-keeping problems, and that the campus vice-president wanted the carpenter to return to his assigned work area.[21]  The campus police officer did as requested, even though the request to "shake up" the carpenter was not part of the campus police officer's regular job duties and unrelated to the investigation into items missing from a loading dock.

            Except for this last incident, campus police officers have not acted on behalf of the Higher Ed. Board in determining what discipline, if any, to apply against the individuals subject to possible criminal prosecution or investigation by the campus police officers.[22]  Furthermore, campus police officers are not the only police officers who enforce criminal laws against college employees.  State and local police officers have arrested unit members on occasion for criminal law violations.  Like these police officers, campus police officers are subject to civil suit for violations of civil rights.  Colleges, in their discretion, may indemnify campus police officers subject to civil rights suits because of their law enforcement responsibilities.

            If there are allegations of criminal conduct by campus police officers, then internal affairs officers at the relevant campus conduct an investigation.  These internal affairs officers — usually a lieutenant or a captain — are not part of the bargaining units represented by Council 93 and not included in the severance petition.

Institutional Security Officers

            The Massachusetts public education system employs 41 institutional security officers at its community and state colleges.  Institutional security officers do not undergo special police training, do not attend a police academy, and are not sworn police officers.  Institutional security officers do not carry firearms or other weapons, nor do they possess the other paraphernalia usually associated with campus police officers.  Institutional security officers require only limited security-related work experience prior to being hired, and their training largely occurs on the job.

            Institutional security officers wear uniforms, though their uniforms are different from those of campus police officers, and institutional security officers do not have badges or similar police officer indicia.  Institutional security officers primarily perform basic security functions on college campuses.  They patrol specific buildings or areas on a college campus, lock and unlock doors in evenings and mornings,[23] or staff a  building entrance or exit.[24]  While the job description for institutional security officers lists several police-like job duties, such as surveillance, investigating crimes, interviewing witnesses, and determining if criminal activity has occurred, institutional security officers have not, in practice, performed those job duties to the same degree and extent as campus police officers.  Rather, institutional security officers maintain daily activity/incident logs that might be used in college disciplinary proceedings against students or by campus police officers in criminal investigations.  Institutional security officers conduct preliminary interviews with individual witnesses to an incident and report their findings to campus police officers or a college administrative body for disciplinary action.  Institutional security officers do not arrest anyone or issue warnings.  While they may confiscate/collect evidence (e.g., alcohol being consumed by student-minors on campus), they do not prepare a chain of custody for that evidence. 

            Institutional security officers, however, issue parking tickets on some campuses, and they work with local police and campus police officers in maintaining order around the college campus.  They serve as eyes and ears for campus police officers in policing college campuses.  In emergency situations, such as a fire or reports of a gun inside a building, institutional security officers call for assistance from fire departments or campus police officers, and institutional security officers must maintain their composure in these circumstances and demonstrate empathy for those affected by an incident.  Institutional security officers have first-responder training and will provide CPR or other appropriate medical care for which they are trained.  In light of their job responsibilities, institutional security officers face the risk of physical injury from others.

            Some colleges have their institutional security officers work in three separate work shifts, while other colleges employ institutional security officers in only one or two shifts (e.g., an evening shift from 2 PM to 10 PM and a night shift from 10 PM to 6 AM).  As with campus police officers, some colleges have contracted out this security-related work to independent, third-party organizations for particular shifts or locations.

            Institutional security officers have frequent contact with campus police officers in the course of their work and will even work out of the same building.  They may have two-way radios for communicating directly with campus police officers and for receiving communications from dispatchers.  At one campus, those with the rank of institutional security officer III serve as supervisors for other institutional security officers on a particular shift.  Lower-ranking institutional security officers report problems they encounter or questions they have to an institutional security officer III, if available, at that college campus and submit time slips and any requests for time-off to the institutional security officer III.  Lieutenants and police chiefs at campus police departments can direct the work of institutional security officers and assign them specific tasks like watching a specific individual.

            Occasionally, an institutional security officer is promoted to the position of campus police officer.  Upon that promotion, the individual still must take the required police training mandated for campus police officers and pass the necessary qualifying exams discussed above. 

Other unit members

            Maintenance employees often drive college-owned vehicles in the course of their work, and on some campuses they wear uniforms specific to their jobs.  Certain maintenance employees — electricians, plumbers, steam fitters, power plant engineers, and heating ventilation and air conditioning (HVAC) personnel — confront hazardous working conditions on a daily basis, and they must be appropriately licensed prior to being hired.  In order to maintain their licenses, some of these maintenance personnel must complete a certain level of coursework every few years (the amount of coursework and the length of time allowed to complete the coursework varies by occupation).  While not responsible for enforcing criminal law in the Commonwealth, several maintenance titles must follow and enforce federal and state legal requirements (e.g., HVAC personnel must maintain certain records when reclaiming refrigerant).  Maintenance employees also carry certain tools that can be characterized as weapons, such as buck knives, which they use in the course of carrying out their job responsibilities.  Finally, certain maintenance employees must respond to emergencies in campus buildings (e.g., a fire inside a campus power plant).  In these circumstances, maintenance personnel are responsible for shutting down faulty equipment and making sure that equipment is safe to operate before allowing campus operations to resume.

            Due to their specific job duties, employees in one classification usually do not perform the work of another classification.  For example, a plumber will not perform the job duties of a campus police officer, and a campus police officer will not perform the work of HVAC personnel.  The training and job skills of each position are unique.  Nevertheless, a campus police officer at one college campus voluntarily performs overtime snow removal work during winter snow storms. 

            In the course of carrying out their jobs, maintenance employees will often interact with campus police officers and institutional security officers.  Those interactions usually occur when unit members run into each other while performing their jobs.  The ensuing conversations have included issues ranging from collective bargaining concerns to how these unit members will coordinate their responses in restoring college operations after a fire in a classroom or dormitory.

            All unit members carry identification cards issued to them by their respective college.

Bargaining concerns

            Council 93 has three full-time staff representatives who represent unit members.  The staff representatives can be reached via office phone, mobile phone, or e-mail messages, and each travels every week to the ten or so campuses for which each is responsible.  These staff representatives report to Council 93's higher education coordinator who in turn reports to the executive director for Council 93. 

            At each campus, Council 93 typically has a chief steward for each bargaining unit along with other stewards who assist the chief stewards when handling grievances or other collective bargaining matters.  These chief stewards are elected along with "table officers": a president, vice-president, recording secretary, and treasurer. 

            In the grievance process Council 93 has negotiated with the Higher Ed. Board, the chief steward usually files any grievances with the campus human resources director.[25]  The campus human resources director then decides either to hear the grievance, which places the matter at the second step of the grievance process, or to remand the matter back to a department head for a first-step grievance hearing.  If the grievance is unresolved after the first and second-step hearings, a staff representative for Council 93 can take the matter to the college president, the third step in the grievance process.  At the fourth step of the grievance process, a joint labor-management committee attempts to resolve the matter.  If no resolution is possible, an executive board for Council 93 consisting of the table officers and all the chief stewards in units I and II vote on whether to take the grievance to binding arbitration.[26] 

            A Council 93 staffer also handles questions a unit member might have about whether his or her job is properly classified.  The affected employee files certain paperwork with a campus human resources representative in a process called reallocation.  The human resources representative may agree with the employee and reallocate the person into a higher job classification.  Or, if the human resources representative disagrees with the requested reallocation, the staff representative then assists the individual in presenting the request to a joint labor-management panel that decides the reallocation question.

            For contract negotiations, Council 93 solicits volunteers from each group within the bargaining unit to be on the negotiating team.[27]  From one to three campus police officers have served on the negotiating team for the last three contracts.[28]  During the last round of contract talks, these volunteers surveyed campus police officers and developed approximately eighty contract proposals for the negotiating team. 

            Council 93 also appoints liaisons who report back to the campus police officers at each campus on issues and concerns that arise during contract talks.  Council 93 has these liaisons because certain collective bargaining concerns of campus police officers are unique.  Many of their concerns are included in a supplemental agreement for public safety personnel.[29]  This supplemental agreement specifies that employees who undertake job-related training like attending a police training academy are obligated to remain with the Higher Ed. Board a certain amount of time after that training is completed.  The supplemental agreement further indicates that the Higher Ed. Board will cover the full expenses of all such training and specifies how that compensation is provided.  However, if the employees fail to remain with the Higher Ed. Board the specified amount of time, those employees must reimburse the Higher Ed. Board for the cost of the training.  The supplemental agreement also provides for a clothing allowance, compensation for all costs associated with appointment as a special police officer under M.G.L. c.22C, § 63, compensation of up to $250 for immunization for Hepatitis B, and paid detail work.

            In the most recent collective bargaining agreement, Council 93 negotiated a night/weekend pay differential of an additional 75 cents per hour,[30] an increase in unit members' clothing allowance to $700 by the final year of the collective bargaining agreement, and reimbursement to campus police officers for the bullet-proof vests they are required to wear.[31]  Council 93 and the Higher Ed. Board additionally agreed to a $300 stipend for campus police officers who work as emergency medical technicians, an additional duty many campus police officers have assumed.

            For a successor contract, some campus police officers want all unit members to have body armor available to them.  They also want a schedule of four days on and two off instead of the current five-day schedule, so the campus police officers will have more opportunities to rest throughout the year.  Additionally, they want compensation from the Higher Ed. Board for the costs associated with maintaining civilian clothes.  Council 93 has proposed and the Higher Ed. Board has tentatively agreed to create a campus police officer III position. 

            While staffers for Council 93 lack expertise in criminal law and police practices, those staffers have represented campus police officers in several local matters at colleges campuses, including the use of firearms at Salem State College, the use of overtime at Salem State College, Massasoit Community College, and Bristol Community
College,[32]and the use of a video surveillance system at Massasoit Community College.  For instance, Council 93 conducted impact bargaining over the decision to arm campus police officers at Westfield State College with firearms.  That bargaining started approximately a year prior to implementation and involved regular consultation with the affected campus police officers.  Council 93 negotiated a provision to the new policy providing that those campus police officers who did not pass firearm testing requirements would retain their current positions.  When one of the affected campus police officers at Westfield State College failed one of the firearm-related testing requirements, Council 93 filed a grievance.  The campus police chief and Council 93 resolved the grievance by allowing the campus police officer in question to retake the failed test, which he subsequently passed. 

            Council 93 also has bargained over workload concerns at Bristol Community College when the campus police chief began requiring campus police officers to secure all campus buildings. In January of 2004, a Council 93 staffer and the campus police chief reached an agreement that divided securing interior doors from exterior doors.  According to the agreement, securing interior doors would continue to be the responsibility of the campus custodial staff while campus police officers would assume securing exterior doors.

            Council 93 has resolved disputes informally, such as when a campus police officer at Westfield State College complained of harassment from a supervisor and Council 93 worked out a mutually agreeable shift change.  Council 93 has pursued grievances by institutional security officers when they were denied promotions to campus police officer positions. 

            Council 93 has not resolved several issues that concern campus police officers.  On or about December 17, 2004, the Massasoit Community College Police Department notified campus police officers that it was contracting out firearms instruction and armorers.  The current firearms instructor sent an e-mail message to a Council 93 staffer about grieving this loss of work.  The staffer then met with campus police officials about the change and planned to file a prohibited practice charge with the Board if the issue was not resolved satisfactorily.  However, the campus police officer in question does not recall the staffer informing him of these actions. 

            Finally, the campus police officers who filed this petition for the most part have not filed grievances, participated in bargaining sessions, or otherwise sought out representation by Council 93. 

Opinion

            The Board does not favor severance petitions and has declined to use them to fix imperfectly constructed bargaining units. City of Quincy, 31 MLC 35, 38 (2004); Town of Marblehead, 27 MLC 142, 145 (2001).  To sever a group of employees from an existing bargaining unit, the petitioner "must demonstrate that the petitioned-for employees constitute a functionally distinct appropriate unit with special interests sufficiently distinguishable from those of other unit employees, and that special negotiating concerns resulting from those differences have caused or are likely to cause conflicts and divisions within the bargaining unit."  City of Boston,  25 MLC 105, 119 (1999).

Functionally distinct

            The first prong of the Board's severance analysis requires the petitioner to demonstrate that the proposed bargaining unit consists of employees who comprise a functionally distinct, appropriate unit with special interests sufficiently distinguishable from those of the existing unit of employees. City of Quincy, 31 MLC at 39.  The Board considers many factors in determining whether the petitioned-for employees constitute a functionally distinct unit from the existing bargaining unit, including whether the petitioned-for unit of employees: 1) have specialized skills that are acquired through a required course of study; 2) maintain and enhance their skills through continuing education; 3) perform significantly different job functions compared with the existing unit of employees; 4) share work locations or common supervision with the existing unit of employees; and 5) either interact with or share duties with any other bargaining unit member. Id., citing Town of Barnstable, 28 MLC 165, 169-170 (2001); City of Lawrence, 25 MLC 1, 5 (1998). 

            By virtue of its composition, Unit II contains numerous functionally distinct positions.  While campus police officers are not the only employees in Unit II who possess specific skills, undergo extensive training and certification, and enforce laws, the skills, training, certification, and laws campus police officers enforce are unique to them.[33]  Furthermore, their uniforms, hours of work, and opportunities for overtime are distinct from other unit members.  Campus police officers use equipment, such as handcuffs and batons, that is not available to other unit members.  Finally, the record shows that campus police officers do not share common supervision with other unit members. 

            In its brief, the Association contends for the first time in these proceedings that when the Board certified Unit II in 1976, the position of campus police officer differed significantly from what exists currently.  According to the Association, campus police officers functioned as security guards at that time.  However, the Association introduced no evidence at the hearing to support that contention.  City of Boston, 10 MLC 1140, 1147 (1983) (allegations made after a hearing closes are not part of the record).  Absent evidence of compelling changes in the job duties of the disputed positions since 1976, we decline to modify a bargaining unit that the Board certified was appropriate for collective bargaining, even if the evidence demonstrates that the proposed bargaining unit contains some functionally distinct members. City of Quincy, 31 MLC 35, 39 (2004); City of Fall River, 26 MLC 13, 17 (1999) (severance petition dismissed when parties failed to demonstrate any change in bargaining unit since last certification election); Boston School Committee, 25 MLC 17, 21-2 (1998) (differences in pay and job duties among unit employees unchanged from when Board previously certified unit).  Even if the Association had shown a compelling change in the position of campus police officer, it has not met its burden under the second prong of the severance analysis, as described in more detail below.

Special Bargaining Concerns

            The second prong of the severance analysis requires a finding that special negotiating concerns of the campus police officers have caused or are likely to cause serious conflicts or divisions within the bargaining unit that will effectively interfere with collective bargaining. City of Boston, 25 MLC at 120.  To establish the requisite degree of conflict necessary for severance, the petitioner must show that the petitioned-for employees play no role in the representation process, cannot participate on the negotiating team, and have their interests subordinated by the incumbent union to the interests of the other employees in the unit. City of Quincy, 31 MLC at 39, citing City of Somerville, 27 MLC 62, 66 (2000) (further citations omitted). However, the petitioned-for employees’ inability to achieve their bargaining goals within a larger unit or their dissatisfaction with their bargaining representative’s accomplishments is insufficient to establish the type of conflict necessary to warrant severance.  Town of Marshfield, 15 MLC 1130, 1136 (1988); New Bedford SchoolCommittee, 12 MLC 1058, 1060 (1985); Lowell SchoolCommittee, 8 MLC 1010, 1014 (1981).

            The Association argues that the law enforcement responsibilities of campus police officers demonstrate potential and actual conflicts with unit members, because these employees investigate, arrest, charge, testify against, and prosecute Unit II members.[34]  However, the record does not show a causal relationship between the law enforcement actions of campus police officers and the personnel decisions of state and community college officials.  While campus police officers have broad authority in law enforcement matters over any person on a college campus, they have no authority to determine what discipline, if any, state or community colleges can mete out against Unit II members for violating either criminal law or campus regulations.  The incidents cited by the Association confirm this testimony.[35]  Furthermore, there is nothing in the record to suggest that campus police officers have even considered unit membership or their relationship to their employer when issuing traffic citations against Unit II members, offering testimony at criminal proceedings involving Unit II members,[36]preventing or prosecuting possible criminal violations, or taking some other action against Unit II members. 

            Moreover, the Association's emphasis on how the law enforcement activities of campus police officers may create conflicts with other unit members ignores the possibility that members may also willingly cooperate with campus police officers.  By arresting and prosecuting those who steal from or assault others on a college campus, campus police officers are providing for the safety and protection of their fellow unit members.  Furthermore, the record is replete with evidence regarding how campus police officers cooperate with other unit members.  Campus police officers transport nurses to accident scenes, coordinate the evacuation of buildings with maintenance employees in the case of fires, complement their efforts with those of institutional security officers, and receive directives from dispatchers who belong to Unit I.

            Notably, the record shows that campus police officers have served and continue to serve on Council 93's executive board for Units I and II and have served on Council 93's negotiating teams.  In the collective bargaining agreements between the Higher Ed. Board and Council 93, there are numerous provisions that directly relate to the concerns of campus police officers, such as reimbursement for bullet-proof vests, a clothing allowance, reimbursement for training, and a night/weekend pay differential.  Moreover, Council 93 staffers have represented campus police officers and negotiated resolutions on several issues ranging from overtime assignments to the use of firearms.  Therefore, the evidence is insufficient to demonstrate that the petitioned-for employees have special negotiating concerns that have caused or are likely to cause serious conflicts or divisions within the bargaining unit effectively interfering with collective bargaining.

            The Association presents additional reasons outside of the Board's traditional severance analysis in an effort to sever campus police officers from Unit II.  We turn to consider their merit.

Severance of Guards as a Matter of Policy

            The Association argues that the Board should, as a matter of policy, segregate campus police officers into their own bargaining units.  To this end, the Association urges the Board to follow the hearing officer's decision in County of Middlesex, 13 MLC 1654, 1661 (H.O. 1987), to endorse the proviso in the National Labor Relations Act (NLRA) regarding security guards.[37]  In that case, the hearing officer allowed severance of police officers from a larger unit of employees because of the security duties the police officers exercised.  "Security police must owe their allegiance to their employer," the hearing officer explained, "especially with respect to enforcing rules to protect the employer's property against employees and the general public, or to protect the safety of persons on the employer's premises." Id.

            The decisions of hearing officers, however, do not serve as precedent in Board proceedings.  City of Taunton, 26 MLC 225, 227 n.5 (2000); Town of Plainville, 18 MLC 1001, 1011 (1991).  Furthermore, the Board explicitly held in City of Somerville, 28 MLC 60, 63 (2001), that a prohibition against mixing guard and non-guard units was not germane to the public sector. Congress enacted § 9(b)(3) of the NLRA "to insure to an employer that during strikes or labor unrest among his other employees he would have a core of plant-protection employees who would enforce the employer's rules for the protection of his property and persons thereon without being confronted with a division of loyalty between the employer and dissatisfied fellow union members." McDonnell Aircraft Corp., 109 NLRB 967, 969, 34 LRRM 1489, 1489 (1954).  Because  public-sector employees are prohibited from striking under Section 9A(a) of the Law,[38] the Board in City of Somerville found that the type of bargaining unit segregation expressed in § 9(b)(3) of the NLRA was inapplicable under M.G.L. c.150E.[39]  28 MLC at 63. The Board also pointed out that it previously had recognized units where security-related personnel had been grouped with non-security related personnel. Id. At 63-64, citing Dukes County/Martha's Vineyard Airport Commission, 25 MLC 153 (1999), and City of Springfield, 24 MLC 50 (1998).

            The Association asks the Board to distinguish City of Somerville, because the law enforcement responsibilities of campus police officers are wholly distinct from other unit members and have led and will lead to irreconcilable conflicts with unit members due to campus police officers' responsibilities to enforce state law and campus regulations.  These arguments are similar, if not identical, to arguments already examined under the second prong of the Board's severance analysis and thus provide no basis for distinguishing City of Somerville. 

            The Association next contends that the Board recognized this alleged labor relations conflict between law enforcement personnel and non-law enforcement personnel when it placed state law enforcement officers in their own bargaining unit.[40]  However, the Board created statewide bargaining units 4 and 5 not because security-related personnel had to be separated from employees who did not have these responsibilities but because of stipulations by the relevant parties regarding the community of interest for each proposed unit. Commonwealth of Massachusetts, 18 MLC 1381, 1384-92 (1992) (Board describes bargaining history of the statewide bargaining units); State Bargaining Unit Rules, 1 MLC 1318 (1975) (Board articulates its reasons for the creation of the various statewide bargaining units).  Moreover, as the Board noted in City of Somerville, supra, the statutory units for the Trial Court segregate court officers and probation officers, but not security employees, who are included in the overall non-professional units.  28 MLC at 63, citing Chief Justice for the Administration and Management of Trial Court, 23 MLC 9 (1996) (Commission accreted employees, including security guards, transferred from counties to Trial Court to statutory non-professional unit). Cf.  Commonwealth of Massachusetts, 31 MLC 115 (2005) (Board dismisses a petition to represent lieutenants and captains in the State Police because of specific exclusion in the Law).  Consequently, the Association's contention is not persuasive.

            Finally, the Association also points to other states that have segregated law enforcement employees into separate bargaining units to indicate how serious and significant this conflict between security and non-security personnel is.  The Association argues that these other states have decided to place law enforcement personnel in their own bargaining units in many cases without consideration of their right to strike.  An examination of several of the states cited by the Association reveals little, if any, support for the Association's arguments.  For the most part, the policies of these other states are based on: (a) differences over who can strike and the ensuing problems of creating mixed units of employees, some of whom possess a right to strike and others being prohibited from self-help, see, e.g., Manitowoc County, Dec. No. 25851 (WERC January 1989) (Wisconsin Employment Relations Commission puts law enforcement personnel with the power to arrest in separate municipal bargaining units because they are prohibited from striking whereas other municipal employees are not); and Minn. Stat. § 179A.03, subd.7 (defining police officers as essential employees for purposes of public-sector collective bargaining) and Minn. Stat. § 179A.18 (prohibiting strikes by essential employees but allowing non-essential employees to strike); (b) policies arising from concerns or statutory mandates unique to those states, see, e.g., Temple University, 26 PPER ¶26161 (1995) (a bargaining representative cannot under Pennsylvania public-sector collective bargaining law represent both municipal police officers and campus security guards, because law enforcement personnel are excluded from collective bargaining under the state's Public Employee Relations Act, 43 P.S. §§ 1101.101 et seq., and pursue collective bargaining under Act 111 of 1968, and because organizations that seek to represent security guards cannot also represent non-guards under 43 P.S. § 1101.604(3));  and County of Erie and Sheriff of Erie County, 29 PERB ¶3031 (1996) (New York's Public Employment Relations Board determined that sheriff deputies who engage in police services or ancillary services directly related to law enforcement properly removed from a unit of other sheriff deputies because "police service is concerned with the broad spectrum of human rights, public order, and the protection of life and property") (internal citations omitted); or (c) reasons not applicable to the petition at issue here, see, e.g., Mo. Rev. Stat. § 105.510 (Missouri statute excludes police officers from collective bargaining and so there is no issue about whether they should or should not be included in bargaining units with other kinds of employees); City of St. Louis, Public Case No. 84-116 (slip op. February 4, 1985) (police officers include those persons engaged in law enforcement who, regardless of job title, perform duties and functions substantially comparable to those performed by police and deputy sheriffs).

Severance of Campus Police Officers As Supervisors

            The Association further argues that the Board should sever the campus police officers because their role in campus operations places them in a position analogous to supervisors of unit members.[41]  In support of this argument, the Association points to campus police officers' law enforcement responsibilities as evidence of potential and actual conflicts with unit members.  As already noted, the authority campus police officers have in matters of law enforcement is distinct and not analogous to the authority of supervisors: (1) to make major personnel decisions regarding hiring, transfer, promotion, discipline, and discharge; (2) to recommend such personnel decisions; or (3) to assign and direct the work of their subordinates. Cf. Town of Holden, 25 MLC 175, 176 (1999) (lieutenant and sergeants qualify as supervisors because they contribute to discussions and make recommendations concerning disciplinary and hiring decisions during the bi-weekly departmental meetings with the police chief and assign overtime).  Accordingly, this argument is without merit.

Amendment of the Petition to Include Institutional Security Officers

            If the Board declines to sever campus police officers, the Association asks the Board to consider a combined unit of campus police officers and institutional security officers.  Our reasons for declining to sever the campus police officers hold equally true for the institutional security officers.  While they might have certain functionally distinct job duties, there is no evidence that those duties have changed since the Board’s original certification in 1976. Moreover, the evidence does not reflect any facts demonstrating that the ISO’s have any special bargaining concerns that have caused or are likely to cause serious conflicts or divisions within the bargaining unit that will effectively interfere with collective bargaining.  Finally, the showing of interest provided by the Association in this matter is less than fifty percent of the employees in this proposed unit, and the Association has not indicated what uncommon or extenuating circumstances excuse the showing of interest requirement.[42] 

Conclusion

            For all of the above reasons, the Board declines to sever the campus police officers from the existing unit and allows Council 93's motion to dismiss the petition.

            SO ORDERED.

COMMONWEALTH OF MASSACHUSETTS

DIVISION OF LABOR RELATIONS

COMMONWEALTH EMPLOYMENT RELATIONS  BOARD

MARJORIE F. WITTNER, CHAIR

ELIZABETH NEUMEIER, BOARD MEMBER

[1]  Pursuant to 456 CMR 13.02(1) of the former Labor Relations Commission's  (Commission) regulations in effect prior to November 15, 2007, this case was designated as one in which the Commission would issue a decision in the first instance. Pursuant to Chapter 145 of the Acts of 2007, the Division of Labor Relations (Division) "shall have all of the legal powers, authorities, responsibilities, duties, rights, and obligations previously conferred on the labor relations commission." The Commonwealth Employment Relations Board (Board) is the body within the Division charged with deciding adjudicatory matters. References to the Board include the Commission.

[2]Council 93 had filed its first motion to dismiss the petition on November 29, 2004 because of a lack of serious divisions or conflict within the unit.  The Hearing Officer took this motion under advisement. 

[3] The Board’s jurisdiction is uncontested.

[4]The Higher Ed. Board is also the governing authority for five university campuses, but those campuses are not part of the bargaining units at issue in this petition. 

[5] The Board takes administrative notice of the fact that the 1976 voter eligibility lists for Case Nos. SCR-2016 and SCR-2050 include the position of campus police officer.

[6] For example, one such facility is the Special State Police Officer Police Academy (Academy), operated by the Massachusetts State Police.  The Academy offers a fourteen week (~590 hours) course of study for campus police officer candidates.

[7] Of those campuses where campus police officers carry firearms, the firearm is typically a handgun but can include a shotgun.

[8] Additionally, each college has ethical guidelines that its campus police officers must follow regarding their law enforcement responsibilities.  These ethical guidelines have not been subject to collective bargaining.

[9] Depending on the college campus, campus police officers issue traffic citations under state law or citations under the college's regulatory authority.  However, the ability of campus police officers to issue traffic citations may be limited in the future because of a decision by the Department of Public Safety for the Commonwealth not to provide traffic citation forms to campus police departments.

[10]Each campus has its own start and stop times for these shifts.  Typically, a day shift goes from morning to mid-afternoon, an evening shift goes from mid-afternoon to late evening, and a night shift goes from late evening to early morning. 

[11]In addition to the campus police officers included in Unit II, campus police departments also employ campus police officers on a reserve basis.  These non-unit, reserve campus police officers are offered work shifts when campus police officers in the unit are not available for the scheduled shift.  The reserve campus police officers are free to decline a work shift without penalty, and a reserve campus police officer may go for weeks without work at the campus. 

[12] Campus police officers are the only unit employees required to be licensed to carry firearms as a condition of employment.  As already noted, not all campuses require campus police officers to carry firearms, however.  Furthermore, certain campus police officers may also be required to dress as civilians because of their responsibilities as detectives or police prosecutors.

[13] The maintenance employee in question subsequently admitted to relevant facts, received a suspended sentence, and made restitution.

[14] The record is silent as to whether this employee belonged to Unit I or Unit II.

[15] The record is silent as to whether the maintenance employees were part of Unit II or contract employees.

[16] The record is silent regarding what disciplinary action, if any, the college has taken against these unit members.

[17] The record is silent as to what bargaining unit, if any, these employees belonged.

[18] The record is silent as to whether this employee belonged to Unit I or Unit II.

[19] The record is silent over whether the Higher Ed. Board, Council 93, or the employee in question took any action regarding this grievance.

[20] The suspect was not a unit member but a contract employee at the college.

[21] The record is silent as to whether the carpenter was a Unit II member or a contract employee.

[22]At the hearing, Council 93 indicated that it had a policy that unit members should not testify against each other at disciplinary hearings.  However, the record does not show whether any unit member had ever testified or not testified at a disciplinary hearing.  Furthermore, the record is silent as to how Council 93 might enforce this policy. 

[23] If an institutional security officer is not available, campus police officers or custodial employees may assume that responsibility.

[24] Some colleges have divided their institutional security officers between "walking" institutional security officers and "resident hall" institutional security officers.  Resident hall institutional security officers are often responsible for working with students in a particular residence hall, while walking institutional security officers are mainly responsible for building security.

[25] Council 93's staff representatives often first attempt to resolve matters informally before filing grievances.

[26] As of March of 2005, five campus police officers serve on Council 93's executive board.

[27]For the last four contracts, Council 93 and the Higher Ed. Board have agreed to one collective bargaining agreement covering both Units I and II. 

[28]For the most recent collective bargaining agreement, effective by its terms from July 1, 2001 to June 30, 2004, three campus police officers served on the negotiating team.  The negotiating team also included clerical staff, trades people, and building maintenance personnel. 

[29] Besides this supplemental agreement for campus police officers and institutional security officers, there is a supplemental agreement for all unit members at the Massachusetts Maritime Academy.

[30]The previous differential was only fifty cents per hour and did not include work on weekends.  Campus police officers were largely responsible for this change. 

[31] This benefit is worth approximately $1,000.

[32] The negotiated agreement at Bristol Community College, for example, indicates that overtime opportunities will be offered first to those unit member campus police officers and institutional security officers who volunteer to be on a primary overtime list and then to those campus police officers and institutional security officers who do not volunteer to be on the primary list as well as to non-unit, part-time campus police officers and institutional security officers.  If no one from either list accepts the overtime assignment, the campus police chief can mandate overtime according to inverse order of seniority.

[33]While institutional security officers share some of the legal responsibilities campus police officers have for securing campus property and maintaining safety, their authority to enforce criminal laws or campus regulations is much more limited.  Moreover, they lack the training and certification campus police officers possess, and institutional security officers do not undertake the extensive continuing education that campus police officers undergo. 

[34] Many of the incidents cited by the Association either do not involve Unit II members, or the record is silent regarding the unit status of the individuals involved.

[35] The Association presented only one incident in which a campus police officer allegedly disciplined a co-worker — when a campus vice-president asked a campus police officer to "shake up" a carpenter.  Even presuming that the carpenter in question was a member of Unit II — something not clear in the record — the campus police officer in question admitted that this action was outside his regular job duties.  Other law enforcement incidents that involved Unit II members show that: (a) the traffic citation issued to the president of Local 1067 has not led to any formal discipline of him or had any impact on his employment at Westfield State College; (b) Salem State College, not campus police officers, decided to terminate the employment of the custodians accused of stealing electronic equipment from the college; (c) Bickford had no role in determining what discipline was appropriate for the maintenance worker caught stealing gas; (d) the record is silent regarding what weight, if any, college officials at Framingham State College gave to the actions of campus police when terminating the employment of the individual charged and found guilty of committing open and gross lewdness and lascivious behavior; and (e) the record does not show what discipline, if any, was meted out to Unit II members (other than Olsen) for traffic violations issued by campus police officers or what impact, if any, towing Unit II members' vehicles for violating state or campus traffic rules has had on collective bargaining matters. 

[36] There is nothing in the record to indicate that campus police officers have testified at disciplinary hearings.

[37] Section 9(b)(3) of the NLRA, 29 U.S.C. § 159(b)(3), prohibits the National Labor Relations Board (Board) from including in a bargaining unit "any individual employed as a guard to enforce against employees and other persons rules to protect property of the employer or to protect the safety of persons on the employer's premises; but no labor organization shall be certified as the representative of employees in a bargaining unit of guards if such organization admits to membership, or is affiliated directly or indirectly with an organization which admits to membership, employees other than guards."

[38] Section 9A(a) of the Law states: "No public employee or employee organization shall engage in a strike, and no public employee or employee organization shall induce, encourage or condone any strike, work stoppage, slowdown or withholding of services by such public employees."

[39] The Board reached a different conclusion under M.G.L. c.150A when accepting parties' stipulations regarding an appropriate bargaining unit in ITT Job Training Services Inc., 19 MLC 1032, 1033 (1992) (parties stipulated to bargaining unit that excluded security and safety personnel).  Because this decision was based on a consent agreement, it does not serve as precedent for c.150A representation questions. See City of Fall River, 26 MLC at 17 n.25 (Board's approval of consent agreements is based on the representations of the parties and does not bind the Board in its role of establishing appropriate bargaining units).

[40] There are two statewide units that involve security-related job functions: Unit 5 for law enforcement officers and Unit 4 for "Institutional Security, including correctional officers and other employees whose primary function is the protection of the property of the employer, protection of persons on the employer's premises and enforcement of rules and regulations of the employer against other employees." See 456 CMR 14.07(1).  While the Association alleges that campus police officers are equivalent to the law enforcement personnel in statewide bargaining unit 5, the Supreme Judicial Court observed in Harvard Crimson, Inc. v. President & Fellows of Harvard College, 445 Mass. 745, 752 (2006) (citations to statutes omitted), that the police powers of campus police officers "are, by statute, far less extensive than the powers of regular police" and not equivalent to the powers afforded a member of the state police.

[41] The Board generally establishes separate bargaining units for supervisory employees and the employees they supervise.  City of Chicopee, 1 MLC 1195 (1974).  This well-established policy stems from the Board's belief that individuals who possess significant supervisory authority owe their allegiance to their employer, particularly in the areas of employee discipline and productivity. City of Westfield, 7 MLC 1245, 1250 (1980).  Therefore, rather than place supervisors in the untenable position of having to discipline employees on whom they rely to secure improved wages, hours, and terms and conditions of employment through the collective bargaining process, the Board places supervisors in separate bargaining units. Id.  It is the existence of supervisory authority, not the frequency of its use, that creates the likelihood of conflict between supervisors and subordinates. Town of Bolton, 25 MLC 62, 67 (1998).

[42] Division Rule 14.05(2), 456 CMR 14.05(2), states that:  "No petition filed under 456 CMR 14.03 seeking to represent a bargaining unit of employees already represented for purposes of collective bargaining and no petition filed pursuant to 456 CMR 14.04 shall be entertained, in the absence of uncommon or extenuating circumstances, unless the Board determines that the petitioner has been designated by at least fifty percent (50%) of the employees involved to act in their interest."