Regents of the University of California (Lawrence Livermore) (PERB 0974H)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
PROTECTIVE 	SERVICE 	OFFICERS'
ASSOCIATION,
Petitioner,
and
REGENTS 	OF THE UNIVERSITY OF
CALIFORNIA 	(LAWRENCE 	LIVERMORE
NATIONAL 	LABORATORY),
Employer.
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) Case No. 	SF-RR-724-H
PERB Decision No. 	974-H
February 	17, 	1993
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Appearance; 	Hanson, 	Bridgett, 	Marcus, 	Vlahos 	& Rudy by Douglas
H. 	Barton, 	Attorney, 	for Regents of the University of California
(Lawrence Livermore National Laboratory).
Before Hesse, 	Chairperson; 	Caffrey and Carlyle, 	Members.
STATEMENT OF 	CASE
HESSE, 	Chairperson: 	This 	case is before the Public
Employment 	Relations 	Board 	(PERB or Board) 	on appeal 	by 	the
Regents 	of 	the University of 	California 	(Lawrence 	Livermore
National 	Laboratory) 	(LLNL), 	from the proposed decision of 	the
administrative law judge 	(ALJ).
On October 16, 	1991, 	the Protective Service Officers'
Association 	(Association) 	filed a 	request 	for 	recognition 	seeking
a unit 	of 	Protective 	Service Officers 	(PSOs) 	and Control Alarm
Station Operators 	(CAS Operators) 	at 	the LLNL. 	The LLNL is a
part 	of 	the University of 	California 	(University) 	operating under
contract with 	the Department 	of 	Energy 	(DOE) 	located 	in
Livermore, 	California and several 	other places.
The 	request 	for a unit 	of 	PSOs 	dates back to an 	initial

determination 	of 	appropriate 	units 	for 	the 	LLNL 	in 	1982 	which
resulted 	in 	an 	extensive 	hearing 	and 	a 	PERB 	decision 	(Unit
Determination 	for 	Service 	Employees 	of 	the 	University 	of
California 	(1982) 	PERB Decision No. 	2 4 5 - H ) .
In 	1982, 	PERB 	refused 	to 	apply 	the 	holding 	in Sacramento
City Unified School 	District 	(1977) 	PERB Decision No. 	30, 	which
held a 	unit 	of 	security 	guards 	appropriate 	where 	the 	employer
requires 	a 	unit 	separate 	from 	other 	employees 	because 	of 	the
unique 	nature 	of 	providing 	security. 	The 	University 	did not
request 	such 	a 	unit 	in 	the 	19 82 	decision 	so 	PERB 	applied 	the
criteria 	established by 	regulation 	section 	3579(a) 	of 	the 	Higher
Education 	Employer-Employee 	Relations 	Act 	(HEERA).1
1 HEERA 	is 	codified at 	Government 	Code 	section 	3560 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory 	references 	are 	to 	the
Government 	Code. 	Section 	3579 	of 	HEERA provided 	in part:
(a) 	In 	each case where 	the 	appropriateness
of 	a unit 	is 	an 	issue, 	in determining an
appropriate unit, 	the board 	shall 	take 	into
consideration 	all 	of 	the 	following 	criteria:
(1) 	The 	internal 	and occupational 	community 	of
interest 	among 	the 	employees, 	including, 	but 	not
limited 	to, 	the 	extent 	to which 	they perform
functionally 	related 	services 	or 	work 	toward
established 	common goals, 	the 	history of 	employee
representation with 	the 	employer, 	the 	extent 	to
which 	such 	employees 	belong 	to 	the 	same 	employee
organization, 	the 	extent 	to which 	the 	employees
have 	common skills, 	working 	conditions, 	job
duties, 	or similar educational 	or training
requirements, 	and 	the 	extent 	to which 	the
employees 	have 	common 	supervision.
(2) 	The 	effect 	that 	the 	projected unit 	will
have 	on 	the 	meet 	and 	confer 	relationships,
emphasizing 	the 	availability 	and 	authority 	of
employer 	representatives 	to 	deal 	effectively
with 	employee 	organizations 	representing 	the
22

At 	that 	time, 	PERB held that 	PSOs, 	who are essentially
security guards without peace 	officer status, 	were appropriately
included 	in a unit 	of 	service 	employees 	and gave 	the 	following
reasons:
Although they carry guns, 	PSOs 	do not 	have
peace 	officer status. 	Because 	the Lab 	is
closed to the public, 	their duties are
different 	from those 	of 	the University peace
unit, 	and taking 	into account 	such factors as
work location, 	the numerical 	size of 	the
unit, 	the 	relationship of 	the unit 	to
organizational 	patterns 	of 	the higher
education employer, 	and the 	effect on the
existing 	classification 	structure 	or 	existing
classification 	schematic 	of 	dividing 	a 	single
class 	or 	single 	classification 	schematic
among 	two 	or more units.
(3) 	The 	effect 	of 	the proposed unit 	on efficient
operations 	of 	the 	employer and 	the 	compatibility
of 	the unit with the 	responsibility of 	the 	higher
education 	employer and 	its 	employees 	to 	serve
students 	and the public.
(4) 	The number of 	employees and classifications
in a proposed unit, 	and its 	effect 	on the
operations of 	the employer, 	on the objectives of
providing 	the 	employees 	the 	right 	to 	effective
representation, 	and on the meet 	and 	confer
relationship.
(5) 	The 	impact 	on the meet and confer
relationship 	created by 	fragmentation 	of
employee 	groups 	or any proliferation of 	units
among 	the 	employees 	of 	the 	employer.
(f) 	The board shall 	not 	determine 	that any
unit 	is appropriate if 	it 	includes, 	together
with other employees, 	employees who are
defined as 	peace 	officers 	pursuant 	to
subdivisions 	(d) 	and 	(e) 	of Section 830.2 of
the Penal 	Code.
This 	section was 	subsequently amended, 	effective January 1, 	1991,
The 	changes 	were 	non-substantial 	and have 	no 	impact 	on 	the
disposition of 	this 	case.
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officers 	who patrol 	the nine 	open campuses.
PSO duties 	include 	checking 	clearance badges
at 	entry points, 	escorting uncleared persons
through 	the 	lab 	and 	securing 	classified
information from their view, 	performing 	foot
and motor patrol, 	traffic 	control 	functions
and 	classified document 	destruction. 	PSOs
escort movement 	of 	hazardous 	or toxic
materials 	through the laboratory and, 	in the
event 	of a 	"spill," 	they set up traffic
barriers 	and control 	the movement 	of
personnel 	in the area. 	Unlike most
laboratory personnel, 	the PSOs' 	schedule
covers 	seven days a week, 	24 hours a day.
(Unit Determination 	for Service 	Employees 	of 	the
University of 	California 	(1982) 	PERB Decision
No. 	245-H, 	pp. 	9-10.)
The Board stated PSOs 	were unskilled, 	shared a 	common
interest 	with other service 	employees, 	and PSOs 	established as 	a
separate unit would result 	in fragmentation of units. 	In the
subsequent 	election, 	no exclusive 	representative was 	elected for
the 	service unit.
In 1984, 	the Laborers International Union Local 	1276, 	AFL-
CIO 	filed a new petition 	seeking a 	separate 	unit 	of 	PSOs 	at 	LLNL
and alleged 	changes 	in working 	conditions 	justifying 	such a unit.
After a hearing, 	the ALJ 	(the 	same ALJ in the 	instant 	case) 	held
that 	in response 	to a world-wide 	threat 	of 	terrorism, 	PSOs
through 	increased 	training 	had been 	transformed 	into 	a para-
military 	security 	force 	and now met 	the 	criteria 	for 	a 	separate
bargaining unit. 	The ALJ's 	decision was 	affirmed by the Board 	in
Regents 	of 	the University of 	California 	(1986) 	PERB Decision
No. 	586-H. 	In that decision, 	the Board found that 	in addition to
more 	training, 	the 	duties 	had been 	increased by the addition of 	a
canine 	team, 	a SERT team 	(same as 	SWAT) 	and other more
A	
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sophisticated security measures 	in 	crowd control, 	arrest methods
and executive protection. 	All 	of 	this warranted a 	separate unit.
In that proceeding, 	the University argued that 	PSOs 	should be 	in
a 	technical 	unit 	rather 	than a 	separate unit 	since 	the upgrading
of 	the 	skills 	was more 	compatible with other 	technical 	employees
such as 	fire-fighters. 	The Board rejected this 	argument
apparently on 	the 	ground 	that 	no petition 	to 	include 	PSOs 	in a
technical 	unit 	had been 	filed 	and 	the 	record would not 	support
such a 	request 	anyway.
Again, 	an election was 	held but 	no exclusive 	representative
received a majority of 	the votes.
After the 	filing of 	this petition on October 16, 	1991, 	by
the Association, 	a hearing was held on April 20, 	1992, 	which
continued through April 	24, 	1992. 	The Association requested a
unit 	that 	included Central Alarm Systems 	Operators, 	also known as
Control Alarm Station Operators 	(CAS 	Operators). 	As 	developed
during the hearing, 	CAS Operators were not 	in existence 	in 1985,
but 	the Association now wished 	them to be 	included.2 At 	the 	time
of 	the hearing 	there appeared to be 	196 	PSOs 	and 	15 	CAS
Operators.3
The 	University 	submitted 	letters 	in 	opposition 	to 	the
Association 	contending 	that 	a unit 	of 	PSOs 	and CAS 	Operators 	were
not 	an appropriate 	unit 	and both 	classifications 	should be 	placed
2The 	classification of 	Central 	Alarm System Operators,
653.0, 	appears 	to have been established in 1988. 	See letter to
Regional Director dated December 18, 	1991.
3Supra 	footnote 	2.
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in a LLNL 	system-wide bargaining unit 	of 	technical 	employees.
The University also argued 	that 	a unit 	of 	PSOs 	and CAS 	Operators
had never been designated as 	an appropriate unit 	as 	the 	PERB 	1986
decision only concerned PSOs, 	therefore, 	the petition should be
dismissed.
A proposed decision was 	issued by the ALJ on July 	15, 	1992.
The ALJ 	concluded 	that 	the 	record 	did not 	show any 	substantial
changes 	in working 	conditions 	for 	PSOs 	from that 	established by
the 	record in 	1986 	and therefore, 	the previous 	ruling was binding
in the 	instant hearing. 	Secondly, 	there was no 	showing by the
University that 	the 	unit 	approved 	in 	1986 	was 	inappropriate.
Thirdly, 	the University had not 	filed a petition to obtain
approval 	of 	a unit 	of 	technical 	employees 	including 	PSOs 	and CAS
Operators 	and 	the 	record would not 	appear 	to 	support 	it 	anyway.
Fourthly, 	the ALJ found that 	CAS 	Operators 	had a 	sufficient
community 	of 	interest 	with 	PSOs 	and 	should be 	included within 	the
unit and 	if voluntary recognition was 	not 	granted, 	an election
should be 	held.
ISSUE
The ALJ 	states 	the 	issue 	in his 	decision as whether a unit
of 	PSOs 	and CAS 	Operators at 	the 	laboratory 	is 	an appropriate
unit? 	The issue, 	more properly stated, 	is whether there 	is
sufficient 	evidence 	in the 	record 	to 	support 	a 	decision 	that
PSOs and CAS 	Operators 	should be 	in the 	same unit?
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DISCUSSION
We 	conclude 	that 	the 	record will 	not 	support 	a 	decision 	that
PSOs and CAS 	Operators are an appropriate unit. 	Moreover, 	there
is 	an absence 	of 	evidence 	to 	support 	a 	finding 	of 	sufficient
community of 	interest 	to warrant membership 	of both
classifications 	in the 	same unit. 	The 	evidence 	clearly supports
a 	finding 	to 	the 	contrary.
THE ALJ'S 	DECISION
The ALJ reviewed extensively the 	findings 	in the 	19 86 	Board
decision 	(Regents 	of 	the University of 	California, 	supra. 	PERB
Decision No. 	586-H) 	which found that 	PSOs 	should be 	included 	in a
separate unit. 	In that 	case, 	PERB 	found that between 1982 	and
1985, 	the 	training 	of 	PSOs 	had 	improved substantially both 	in
quantity and quality. 	Examples 	of 	the 	additional 	training were
in the area of crowd control, 	arrest methods, 	executive
protection, 	hostage negotiation, 	canine units, 	use of deadly
weapons, 	self defense, 	use of SWAT teams. 	The manner of
compensation was 	different 	as 	to over-time and 	"on call" 	pay.
PSOs 	were 	subject 	to physical 	fitness 	standards 	and psychological
examinations 	during 	selection which 	related 	to 	their use 	of
firearms 	and the 	fact 	that 	they carry guns. 	They were 	also
subject 	to a special 	supervision and at 	that 	time, 	there was 	no
history of 	representation. 	All 	of 	the above were 	reviewed to
support 	the 	1986 	Board determination 	that 	PSOs 	were 	different 	in
every way 	from other 	technical 	and professional 	employees 	at
LLNL. 	The ALJ also noted that 	the 	goals 	of 	security of 	the
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institution and protection 	of 	special 	nuclear material 	was 	unique
to 	PSOs.
He 	then analyzed the 	findings 	of 	the 	current 	hearing and
concluded 	that 	there 	had been 	little 	change 	in working 	conditions
since 	1985 	except 	an upgrade 	in 	the 	quality and 	sophistication of
the means 	of providing security. 	There were however, 	system
changes. 	A new system, 	in the planning stages 	in 1985, 	called
Secure 	Integrated Livermore Alarm System 	(SILAS) 	was 	implemented
in 	1988. 	The 	Controlled Access by 	Individual Member 	(CAIN I)
which 	controlled 	identification and access 	of 	employees 	to 	LLNL
was upgraded to 	CAIN II. 	Security was 	improved by double 	fencing
rather 	than 	single 	fencing and 	the 	addition 	of more 	cameras 	and
elevated guard stations. 	Also PSOs, 	in 1992, 	are now required to
complete more paperwork and are 	the 	subject 	of 	a new program
related 	to 	drug 	testing 	(Presumed 	Secure Assurance 	Program,
PSAP). 	All of these changes 	(as required by the U. 	S. 	Department
of 	Energy regulations) 	supported the ALJ's 	conclusion 	that
nothing has 	occurred to change 	the 	19 86 	PERB decision 	(Regents 	of
the University of California, 	supra. 	PERB Decision No. 	586-H)
that 	PSOs 	are an appropriate unit.
CONTROL 	ALARM 	STATION 	OPERATORS
The ALJ also held 	that 	CAS 	Operators 	should be 	included 	in
the unit. 	In 19 85, 	there was a console which monitored access
areas 	and 	registered alarms 	and which was 	tied 	into 	the 	Police
Information Network which 	included 	other 	law 	enforcement 	agencies
and 	their 	computers 	and 	the National 	Crime 	Information Center 	of
8

the Department 	of Justice. 	The 	PSOs 	operated the 	console 	in
1985. 	In 1988, 	it was 	replaced by a more 	sophisticated console
and alarm system called 	"ARGUS." 	While 	the basic 	function was
the same, 	the 	console was 	integrated with SILAS 	and CAIN II 	and
an 	extensive 	surveillance 	camera 	system which allows 	the 	operator
to view all 	sensitive areas 	of 	the 	institution with 	zoom lenses.
A new 	classification 	(CAS 	Operator) 	was 	established 	for 	just
those 	employees who operated the 	system. 	Phillip Kasper, 	a
Protective 	Force Division Leader, 	testifying 	for the University,
stated as 	follows:
A 	Were 	some 	PSOs 	doing 	the 	duties 	of 	CAS
Operators? 	Yes, 	sir.
Q 	Okay. 	And how are 	CAS 	Operators
trained?
A 	Well, 	there's 	a 	formal 	training program
set aside 	for the CAS Operators, 	put 	together
by the CAS Supervisor, 	Wendy Bishop. 	It
includes about 200 hours 	of training. 	It
covers 	all 	the 	subject matter that we
discussed through that ARGUS pamphlet, 	the
graphic display terminal, 	how to work the
CCTV, 	call up cameras. 	The most part 	of 	that
training 	is 	essentially one on one, 	on the
job, 	buddy system, 	kind of 	training where 	the
check-off 	verification 	for each 	subject 	area,
before 	the 	CAS 	Operator 	is 	truly 	certified
and is able to work on his 	own.
Q 	You mentioned Wendy Bishop. 	Is 	she 	a
supervisor 	in 	the 	Protective 	Force Division?
A 	She's 	supervisor of 	the CAS, 	of 	the 	CAS
Operators.
Q 	What 	is 	her 	job 	classification?
A 	It 	formerly was 	a 	PSO 	Lieutenant. 	She
is 	now no 	longer a 	PSO 	classification. 	She's
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a 	different 	classification 	and 	I'm not 	quite
sure what 	the name of 	it 	is.
Q 	Had she been a 	PSO at 	one 	time, 	before
becoming 	a 	PSO 	Lieutenant?
A 	Yes.
Q 	And 	subsequently a 	PSO 	Sergeant 	or 	a
Protective Service Sergeant, 	before becoming
a 	Protective 	Service 	Lieutenant?
A 	That's 	correct.
Q 	And are 	there 	training manuals 	or
materials 	for the 	training 	of 	the 	CAS
Operators?
A 	Yes, 	there are.
Q 	And 	is 	there 	on-the-job 	training
provided 	to 	the 	new CAS 	Operator after
they've 	received 	the 	classroom 	instruction 	on
the operations 	of 	the 	console?
A 	Yes, 	there 	is. 	In fact, 	there's
probably, 	as 	I mentioned more on-the-job
style 	of 	training 	in the 	CAS 	training
program, 	than there 	is 	classroom instruction.
Essentially 	they're 	paired up with a 	senior
operator who has 	been selected as 	a 	training
person, 	and works 	through all 	of 	the 	subject
areas 	in the curriculum, 	to that person, 	that
trainer's 	satisfaction. 	So 	in that 	sense,
it's pretty much all 	OJT.
Q 	Do 	the 	trainers 	sign-off 	on 	the person
before 	they 	can 	independently work as 	a 	CAS
Operator?
A 	That's 	part 	of 	the 	certification
process.
Q 	And does 	the 	certification process
include 	testing 	on 	the 	skills 	and knowledge
necessary 	to 	operate 	the 	Central 	Alarm
Station?
A 	Yes, 	it does.
(Tr. Vol. Ill, pp. 84-86.)
10

On 	cross 	examination of 	Richard Bockover, 	a 	Protective
Service Officer since 	1980 	at 	LLNL, 	testifying 	for the
Association concerning the CAS Operators, 	stated as 	follows:
Q 	And how about 	the 	CAS 	operators?
A 	The 	CAS 	operators 	report 	to 	the 	CAS
supervisor, 	who is Wendy Bishop. 	And I
believe 	that her next 	reporting point 	would
be Phil 	Kasper, 	but 	I 	can't 	swear to that.
Q 	Do 	CAS 	operators 	carry guns?
A 	No, 	they don't.
Q 	Is 	there 	any 	requirement 	that 	they
attend 	an 	academy 	type 	- - a 	police 	academy
type 	training?
A 	No, 	there 	is 	not.
Q 	I 	believe you 	said they didn't 	have 	the
same physical 	fitness 	requirements 	that 	PSOs
have; 	is that correct?
A 	No, 	they have 	no physical 	fitness
requirements.
Q 	Are 	they 	covered by 	the 	PSAP?
A 	Not 	at 	this 	time. 	It was 	our
understanding 	that 	neither 	they 	nor upper
management would be 	covered by 	it. 	But 	the
testimony 	from John 	Palmer 	said 	that 	that's
still 	being 	talked about.
Q 	Do 	they get 	paid 	to 	do physical
workouts, 	exercise?
A 	No, 	they don't.
(Tr. Vol. IV, pp. 173-174.)
In 	concluding 	that 	CAS 	Operators 	should be 	included with
PSOs 	in a unit, 	the ALJ stated three 	reasons 	to support 	a 	finding
of a community of 	interest. 	The 	first 	reason was 	that 	the new
console 	system 	(which 	is more 	sophisticated 	in 	1988 	than 	it 	was
11

in 1985) 	had been operated by PSOs prior to 1988. 	Secondly, 	some
PSOs are also certified CAS Operators. 	Thirdly, 	both
classifications 	share 	common supervisors 	and common goals. 	This
is 	simply not 	convincing. 	The CAS Operators, 	whose job it 	is 	to
view the 	computer screens, 	manipulate 	the 	surveillance 	cameras,
and pass 	alarm information to 	PSOs 	as 	well 	as 	the 	other personnel
in the LLNL, 	have nothing 	in common with PSOs 	except 	to be a part
of 	the 	security system. 	They do not 	carry 	firearms 	or receive
training 	in doing so. 	They do not 	respond to the alarms 	or
require 	training in arrest methods, 	crowd control, 	hostage
negotiations, 	canine units, 	technical 	sweeps of meeting rooms or
SWAT team techniques. 	They are not 	required to meet 	physical
standards 	or 	required 	to undergo 	extensive 	psychological
examinations 	and behavioral 	event 	selection 	interviews 	before
initial 	employment. 	In other words, 	they are not a para-military
force 	required 	to 	respond 	in a 	tactical 	mode 	to any 	intercession
into the 	institution. 	The 	fact 	that 	PSOs at one 	time 	operated a
less 	complicated 	console 	system in addition 	to 	their duties 	does
not 	establish a 	community of 	interest. 	In reality the only
element 	CAS 	Operators might 	now have 	in common with PSOs 	is 	the
necessity for 	shift 	duty on a 24 	hour basis. 	The 	extensive
analysis 	by 	the ALJ of all 	the 	elements 	that 	support 	a 	finding
that 	PSOs are unique among all 	the 	employees at 	the LLNL, 	clearly
establish a 	finding 	that 	PSOs 	have 	nothing 	to 	establish a
community of 	interest with CAS 	Operators.
Consequently, 	none 	of 	the 	criteria of 	HEERA section 3579(a)
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has 	been met 	with 	the possible 	exception 	of 	a 	common 	supervisor
at 	a 	fairly low level. 	That 	circumstance 	results 	from the 	fact
that both PSOs 	and CAS Operators 	are part 	of 	the now very
sophisticated security system in place at 	LLNL. 	It 	does not, 	of
itself, 	provide a grounds 	for establishing a combined unit 	of
PSOs or CAS Operators.
CONCLUSION
Although 	the 	record does 	not 	support 	a 	finding 	that 	a unit
composed of 	PSOs and CAS 	Operators 	is an appropriate unit, 	it
does 	support 	and the Board reaffirms 	Regents 	of 	the University of
California 	(1986) 	PERB Decision No. 	586-H that 	the 	PSOs are an
appropriate unit 	under section 	3579 	of 	HEERA.
ORDER
The petition is, 	therefore, 	remanded to the regional
director 	to 	take 	such action as 	is 	consistent with 	this 	Decision.
Members 	Caffrey and 	Carlyle 	joined 	in 	this 	Decision.
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