Regents of the University of California (PERB 0586H)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
LABORERS 	INTERNATIONAL 	UNION,
LOCAL 1276, 	AFL-CIO,
Employee Organization, 	Petitioner,
and
REGENTS OF THE 	UNIVERSITY OF
CALIFORNIA,
Employer
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) 	Case No. 	SF-R-668-H
PERB 	Decision 	No. 	586-H
September 	23, 	1986
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Appearances: 	Mocine 	& Eggleston by Mary H. 	Mocine 	for Laborers
International Union, Local 1276, AFL-CIO; Hanson, 	Bridgett,
Marcus 	& Vlahos 	by Jerrold C. 	Schaefer 	for 	the Regents 	of 	the
University 	of 	California.
Before Hesse, 	Chairperson; 	Burt and Craib, 	Members.
DECISION
BURT Member: 	This 	case comes 	before 	the Public Employment
Relations 	Board 	(PERB or 	Board) 	on exceptions 	to 	the 	attached
proposed decision of 	an 	administrative 	law 	judge 	(ALJ) 	filed 	by
the Regents 	of 	the University of 	California 	(UC or University)
and by Laborers 	International Union, 	Local 	1286, 	AFL-CIO
(Petitioner 	or Union). 	The ALJ found that 	a unit of 	protective
service 	officers 	(PSOs) 	at 	Lawrence Livermore National
Laboratory 	(LLNL or Laboratory) 	sought by the Petitioner, 	is 	an
appropriate 	unit 	for 	representation under 	the 	Higher 	Education
Employer-Employee Relations Act 	(HEERA).
T
1HEERA 	is 	codified 	at Government Code 	section 3560, 	et
seq. 	All 	references 	are 	to 	the Government 	Code unless
otherwise 	specified.
(
e

We 	have 	reviewed 	the ALJ's 	decision 	in 	light 	of 	the
parties' 	exceptions 	and 	responses 	thereto, 	and the 	record 	as 	a
whole, 	and we 	find 	that 	his 	decision 	should 	be 	affirmed
consistent 	with 	the 	discussion 	below.
PROCEDURAL 	HISTORY
When HEERA became effective, 	PERB 	conducted 	a 	series 	of
hearings 	for 	the 	purpose 	of 	establishing 	appropriate units 	for
employees 	of 	the University of 	California.
2
Using 	the
2 Section 	3579 	of HEERA provides 	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 unit, 	and 	taking 	into
account 	such 	factors 	as work 	location,
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standards 	set 	forth 	in 	section 3579, 	the Board created 	separate
units 	for employees 	at LLNL, 	including units 	of 	service
employees 	and technical 	employees, 	among others. 	In The
Regents 	of 	the University of 	California. 	Service 	(1982)
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.
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PERB Decision No. 	245-H, 	the Board placed the PSOs 	at LLNL 	in
the unit 	of 	service employees, 	despite the petition of 	the
Union to 	represent 	PSOs 	in 	a 	separate unit.
An election 	subsequently was 	held 	in 	the 	service unit, 	and
no 	representative 	received 	a majority of 	the votes 	cast. 	After
the 	12-month election bar 	expired, 	the Union 	again petitioned
to 	represent 	the PSOs 	in a 	separate unit. 	The University
responded, 	doubting the 	appropriateness 	of 	the unit. 	The
regional 	office 	issued 	an Order 	to 	Show Cause why 	the 	petition
should 	not 	be dismissed, 	based on 	the 	Board's 	previous 	finding
that 	such a unit was 	inappropriate. 	In response, 	the
Petitioner 	submitted materials 	to 	support 	its 	claim that 	the
employment 	conditions 	of 	the 	PSOs 	had 	so 	changed 	since 	the
first 	hearing 	that 	a 	separate unit was warranted. 	The 	regional
director 	directed 	that 	a 	new 	hearing 	be 	held 	to 	determine 	the
appropriateness 	of 	the unit. 	The hearing was 	held 	in May of
1985, 	and 	the ALJ 	issued his 	decision 	in September 	of 	1985
finding 	that 	a 	separate unit 	is 	appropriate.
EARLIER 	BOARD 	DECISION
In the original unit hearing, 	held in 1980, 	four witnesses
testified 	concerning 	the 	PSOs. 	Their 	testimony 	indicated 	that
PSOs 	had not 	had peace officer 	status 	since 	1974, 	but were
authorized 	to 	carry guns 	pursuant 	to 	the Atomic Energy Act 	of
1954. 	They 	received 	approximately 200 	hours 	of 	training 	after
hire, 	and were 	required to 	secure the 	same 	"Q" 	security
.A
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clearance 	required 	of 	all 	employees. 	Their duties 	consisted 	of
clearing 	badges 	at 	entry points, 	escorting personnel without
security clearances, 	disposing of classified documents, 	and
performing 	motor 	and 	foot 	patrols 	and 	traffic duty. 	Their
primary mission then, 	as now, 	was 	to protect 	the Special
Nuclear Materials 	(SNM) 	housed 	at 	the Laboratory.
The 	Board 	held 	that 	section 	3579(f) 	requiring 	separate
units 	for 	peace officers 	did not 	apply, 	since 	the 	PSOs 	are 	not
peace officers within the quoted 	sections 	of 	the Penal 	Code.
The 	Board went 	on 	to 	find 	that 	the 	policy of 	placing 	guards 	in
a 	separate unit, 	articulated 	in 	Sacramento 	City Unified 	School
District 	(1977) 	EERB Decision No. 	30, 	was not applicable.
(Prior 	to January 1, 	1978, 	PERB was 	known as 	the Educational
Employment Relations Board). 	In so finding, 	the Board
explained 	that 	the 	policy of 	placing 	guards 	in 	separate 	units
was 	established 	to 	guarantee 	the 	employer 	a 	group 	of 	employees
whose 	loyalty was 	not 	undermined 	by 	inclusion 	in 	a 	unit 	with
other 	employees. 	Since 	the University did 	not 	seek 	a 	separate
unit 	for 	the PSOs 	and, 	in fact, 	opposed the creation of 	such 	a
unit, 	the Board 	found the policy 	inapplicable.
The 	Board 	cited 	its 	decision 	in 	Sweetwater 	Union 	High
School 	District 	(1976) 	EERB Decision No. 	4 	in holding 	that 	the
hallmark of 	service 	employees 	is 	the 	performance 	of 	routine
manual 	labor. 	It 	found 	that 	PSOs were 	relatively unskilled
employees, 	like other service employees. 	They performed, 	for
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the most part, 	routine physical 	tasks, 	and 	shared common
interests 	and working 	conditions with other 	employees. 	The
Board 	found 	that 	a 	separate unit would 	be 	inappropriate, 	with
little 	to 	be 	gained 	from further 	fragmentation of 	the unit.
POSITIONS OF THE 	PARTIES
In the 	instant 	case, 	the University argued before 	the ALJ
that 	the 	petition 	should 	be dismissed, 	since 	PERB's 	initial
policy was 	to 	find 	broad 	generic units 	appropriate, 	rather 	than
narrow ones. 	Further, 	here the Board previously found 	a
separate unit 	of 	PSOs 	to 	be 	inappropriate. 	UC contended 	that
any changes 	in circumstances 	did 	not warrant 	a 	separate unit.
It mentioned 	in passing 	on the 	last day of 	the hearing 	that, 	if
inclusion 	in 	the 	service unit was 	found 	to 	be 	inappropriate,
PSOs 	should be 	placed 	in 	the 	technical 	unit.
The 	Petitioner 	claimed 	that 	the 	Board's 	initial
determination was wrong, 	since the policy against 	guards 	in a
unit with other 	employees 	should be 	followed 	here. 	Even 	if 	the
Board's 	interpretation were correct 	at the time, 	however, 	the
Union 	argued 	that 	subsequent 	changes 	in circumstances 	in 	the
job 	of 	protective 	service 	offices 	warranted 	a 	separate unit 	for
those employees.
DISCUSSION
The ALJ's 	findings 	of 	fact 	are 	free 	from prejudicial 	error,
and we 	hereby 	adopt 	them as 	the 	findings 	of 	the 	Board 	itself.
Initially we 	agree with 	the ALJ 	that 	the 	Board's 	previous
decision 	is 	binding 	only to 	the extent 	that circumstances 	and
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Board 	precedent 	remain 	the 	same. 	Unit 	determinations 	are 	not
intended 	to 	be 	fixed 	for 	all 	time 	and, 	where 	no 	representative
is 	in place, 	it 	is 	appropriate to consider 	a claim that
circumstances 	have changed. 	Here 	the Union has 	demonstrated
substantial 	changes 	in 	the duties 	and 	job conditions 	of 	PSOs
since 	the original unit 	hearing 	in 	1980.
The 	University 	is 	moving 	toward 	a 	more 	professional
security force 	in 	response 	to 	the 	threat 	of 	terrorism, 	and,
toward 	that 	end, 	has 	taken 	steps 	to upgrade the 	training 	and
sophistication of 	the PSOs. 	PSOs 	receive more training 	and
perform different 	kinds 	of 	duties 	(e.g., 	the 	special 	emergency
response team, 	canine team, 	technical 	sweeps, 	etc.) 	than they
did 	previously. 	The University 	argues 	that 	the duties 	of 	the
PSOs 	are the 	same 	as 	always: 	protection of 	SNM in general, 	and
access controls, 	badge checks, 	patrols, 	etc. 	in specific
areas. 	This 	argument 	overlooks 	the 	substantial 	alteration 	in
the manner 	in which 	those very general 	duties 	are 	conducted.
We 	find 	that 	circumstances 	have 	indeed 	changed 	since 	1980,
justifying 	a 	reexamination of 	the 	separate 	uniting 	of 	the 	PSOs.
The 	Petitioner 	argues 	that 	PSOs 	should 	be 	considered 	peace
officers 	subject 	to 	section 3579(f) 	of HEERA. 	That 	section
essentially 	follows 	the 	National 	Labor 	Relations 	Act 	in
requiring 	that 	guards 	be placed 	in 	separate units. 	As 	the ALJ
points 	out, 	however, 	the statute 	is quite specific in requiring
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that 	the groups 	to 	be placed 	in 	separate units 	are 	peace
officers 	pursuant 	to 	designated 	sections 	of 	the 	penal 	code.3
PSOs 	are not 	actually covered under 	Penal 	Code 	830.2, 	even
though 	they 	function 	in many 	respects 	as 	peace 	officers.
Therefore, 	HEERA does 	not 	require 	that 	they be placed 	in 	a
separate unit.
A more 	interesting 	question 	is 	raised 	by 	the 	Petitioner's
argument 	that 	the 	Board 	should 	reconsider 	its 	decision 	not 	to
follow the 	Sacramento City Unified 	School 	District, 	supra,
policy of 	placing 	guards 	in a 	separate unit, 	even 	in the
absence of 	a 	statutory requirement 	to do 	so. 	In the 	initial
unit 	determination case, 	the 	Board 	found 	that 	policy to 	be 	for
3 Section 	830.2 	of 	the Penal 	Code 	provides 	in pertinent
part:
The 	following 	persons 	are 	peace 	officers
whose 	authority extends 	to 	any place 	in 	the
state:
•
(d) 	A member of 	the University of 	California
Police 	Department 	appointed 	pursuant 	to
Section 	92600 	of 	the Education 	Code,
provided 	that 	the 	primary duty of 	the 	peace
officer 	shall 	be 	the 	enforcement 	of 	the 	law
within 	the 	area 	specified 	in 	Section 	92600
of 	the Education Code.
(e) 	A member of 	the California 	State
University 	and 	College 	Police 	Departments
appointed 	pursuant 	to 	Section 	89560 	of 	the
Education Code, 	provided that 	the primary
duty of 	any such 	peace 	officer 	shall 	be 	the
enforcement 	of 	the 	law within the 	area
specified 	in Section 	89560 	of 	the Education
Code.
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the 	benefit 	of 	the employer, 	and 	not 	applicable here 	since 	the
employer 	did 	not 	seek 	a 	separate unit.
It 	is unnecessary, 	however, 	to 	reconsider that 	issue 	in
this 	decision because, 	following 	the 	analysis 	of 	the ALJ 	in
applying 	the criteria 	set out 	in section 3579(a) 	of HEERA, 	we
find 	that 	there 	is 	a 	sufficient 	community of 	interest 	among 	the
PSOs 	to warrant 	a 	separate unit. 	They share common 	supervision
with other 	employees 	only at 	a 	fairly high 	level, 	and 	their
selection process 	is 	unique 	as 	is 	their 	training. 	They 	learn
skills 	foreign to 	other 	employees, 	and 	their duties 	overlap
with 	other 	employees 	only minimally. 	They 	are 	subject 	to
fitness 	standards 	set 	by 	the 	Department 	of 	Energy which 	are
unique 	to 	them. 	We 	agree with the ALJ 	that 	the 	bargaining
history neither 	is 	sufficient 	alone 	to 	justify 	a 	separate unit,
nor 	undermines 	the 	rationale 	for 	establishing 	one. 	The 	factors
leading 	to 	a 	separate unit 	of 	PSOs would not 	compel 	the
establishment 	of 	other 	new units, 	so 	that proliferation of
units would not 	be 	a problem. 	A unit 	of 	220 	is 	quite workable,
and 	no 	evidence was 	presented 	to 	show that 	the 	existence 	of 	one
or 	more 	units 	would unduly 	inconvenience 	the University.
The University 	argues 	that 	the 	PSOs 	do 	have 	common
supervision with other employees; 	for example, 	when there 	is 	a
spill, 	they work with other 	employees 	to minimize 	the hazard
and clean it up. 	UC argues 	also 	that duties do overlap; 	for
example, 	testimony 	indicated 	that 	other 	employees 	provide
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escort 	service when no 	PSO 	is 	available, 	and custodians may
destroy 	low-level, 	as opposed to classified, 	confidential
materials, 	without PSO supervision. 	It 	is 	true that PSOs
interact 	with 	other 	laboratory 	employees 	and 	occasionally may
perform a few of 	the same tasks. 	It 	is 	incontrovertible,
however, 	that 	the bulk of 	PSO time 	and effort 	is 	spent 	on
matters 	unique 	to 	them.
The University 	argues 	that 	if 	PSOs 	are 	found 	to 	be
inappropriately placed 	in 	the 	service unit, 	they should 	be
placed 	in the 	technical 	unit. 	It 	bases 	this 	argument 	on the
fact 	that technicians, 	like PSOs, 	are skilled personnel 	and
their duties 	are more 	like 	those of 	PSOs.
This 	position by UC was 	obviously an 	afterthought. 4 It
was 	urged 	in 	a 	footnote 	only 	in 	the University's 	post-hearing
brief 	to 	the ALJ 	and 	in 	a 	paragraph 	in 	its 	reply brief. 	The
ALJ 	treated 	it 	rather 	summarily, 	finding 	that 	the 	issue 	had
not 	been 	fully 	litigated. 	Having 	lost 	on 	the 	issue 	of 	the
service 	unit 	before 	the ALJ, 	the University now urges 	the 	Board
to 	put 	PSOs 	in the 	technical unit.
4 This 	issue was 	first 	raised 	by counsel 	for 	the
University 	in 	the 	afternoon of 	the 	last 	day of 	the 	hearing.
While 	there 	had 	been 	some 	general 	testimony about 	the duties 	of
technicians, 	mixed 	in with 	substantial 	testimony 	about 	the
training, 	duties, 	etc. 	of other service employees, 	neither the
University's 	papers, 	nor counsel's 	representations 	to 	the ALJ
ever 	implied 	that 	the 	issue would 	be 	raised 	before 	the 	Board
itself.
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The University 	argues 	that 	certain 	technicians, 	like 	PSOs,
are 	on duty 	in 	24-hour 	shifts 	and 	that 	they 	respond 	to 	alarms
just 	like PSOs. 	Some technicians, 	like PSOs, 	travel off 	site
to 	respond 	to 	requests. 	(The Laboratory has 	nuclear 	emergency
teams 	which may go 	anywhere 	in 	the world 	to 	help with 	a 	nuclear
emergency.) 	UC 	argues 	that 	the 	training 	for 	firefighters 	(who
are 	in the technical unit) 	is 	like that 	for PSOs, 	and that 	some
technicians 	are 	recruited on 	the 	basis 	of 	military experience.
PSOs 	also 	do work that 	is 	integrated 	in many ways with 	the
technical work done 	throughout 	the 	laboratory. 	The University
finally 	argues 	that 	the 	Board 	has 	previously 	found 	in 	favor 	of
broad generic units 	and that 	placement 	of 	the PSOs 	in the
technical 	unit would 	therefore 	be 	appropriate.
In making 	this 	argument, 	the University misconstrues 	the
nature 	of 	this 	proceeding. 	The petition under 	review here 	is
one 	to 	represent 	the PSOs 	separately, 	and the hearing was
convened 	to 	determine whether 	a 	separate unit 	of 	PSOs 	is
appropriate under 	HEERA. 	No 	petition 	to 	represent 	a 	technical
unit which would 	include PSOs 	has 	been 	filed. 	There 	is 	no
point 	in considering 	a 	change 	in 	the unit 	location of 	these
employees when there 	is 	no 	petition 	at 	issue pursuant 	to which
employees may be 	represented. 	If 	a 	separate unit 	of 	PSOs 	is
not 	appropriate, 	they should 	remain 	in 	the 	service unit 	for 	the
time being, 	since no one else 	is 	seeking 	to 	represent 	them
anywhere else. 	The sole question here, 	then, 	is whether 	a unit
of PSOs 	is 	appropriate.
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In 	answering 	this 	question, 	we 	find 	only that 	a 	separate
unit 	is 	an 	appropriate unit. 	As 	noted by the Board 	in
connection with 	another unit 	at LLNL, 	it 	"may not 	be the
ultimate, 	best 	or 	only 	appropriate 	configuration,"5 but we
find, 	based on the statutory criteria, 	that 	it 	is 	an
appropriate unit.
Even 	if we were 	to 	consider 	the University's 	argument 	that
PSOs 	belong 	in the 	technical 	unit, 	we do 	not 	believe 	the 	record
compels 	such 	a 	conclusion. 	The ALJ 	found 	that 	the 	issue was
not 	fully 	litigated; 	we 	find 	simply 	that 	the University did 	not
establish on 	the 	record 	presented 	that 	a 	technical 	unit 	at 	LLNL
which 	include PSOs 	is 	appropriate.
ORDER
For 	all 	of 	the 	foregoing 	reasons, 	and 	after 	a 	thorough
review of 	the 	record, 	we 	find 	a 	separate unit 	of 	protective
services 	officers 	at 	the Lawrence Livermore National 	Laboratory
to 	be 	an 	appropriate unit 	under 	the Higher 	Education
Employer-Employee 	Relations 	Act.
Chairperson Hesse 	and Member 	Craib 	joined 	in 	this 	Decision.
5 The Regents 	of 	University of 	California 	Professional.
Scientists 	and Engineers 	(LLNL) 	(1982) 	PERB Decision No. 	246-H,
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STATE 	OF 	CALIFORNIA
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
LABORERS 	INTERNATIONAL UNION.
LOCAL 1276. AFL-CIO.
Petitioner.
and
REGENTS 	OF 	THE UNIVERSITY OF
CALIFORNIA.
Employer.
)
)
) 	Representation
Case No. 	SF-R-668-H
PROPOSED DECISION
(9/12/85)
)
)
)
)
)
)
)
)
Appearances: 	Mary C. 	Mocine 	(Mocine & Eggleston) 	representing
Petitioner; 	Jerrold C. 	Schaefer 	(Hanson. 	Bridgett. 	Marcus.
Vlahos 	& Stromberg) 	for 	the Regents 	of 	the University of
California.
Before: 	James W. 	Tamm, 	Administrative Law Judge.
HISTORY 	OF 	PETITION
On July 	1. 	1979, 	the Higher Education Employer-Employee
Relations Act 	(HEERA)11 became 	effective. 	Subsequently, 	the
Public 	Employment 	Relations 	Board 	(PERB 	or 	Board) 	held 	hearings
concerning 	proper unit 	placement 	for 	most 	employees 	of 	the
Regents 	of 	the University of 	California 	(hereafter University),
and 	Board 	decisions 	were 	issued. 	In Unit 	Determination For
Service 	Employees 	of 	the University of 	California 	(1982) 	PERB
Decision No. 	245-H, 	the Board 	created a unit for 	service
employees 	at 	the 	Lawrence 	Livermore National 	Laboratory
1 The 	HEERA 	is 	codified 	at 	Government 	Code 	section 	3560,
et 	seq. 	All 	references 	are 	to 	the 	Government Code unless
otherwise 	specified.
This Board agent decision has been appealed to
the Board itself and is not final. 	Only to the
extent the Board itself adopts this decision and
rationale may it be cited as precedent.
)

(hereafter 	LLNL or 	Laboratory). 	The Board 	included 	protective
service officers 	(PSO's) 	within that 	service unit, 	despite a
request 	by the Laborers 	International 	Union Local 	1276, 	AFL-CIO
(hereafter 	Petitioner 	or 	Laborers) 	that 	a 	separate unit 	be
established at LLNL for PSO's.2
Secret 	ballot 	elections were 	ordered 	and 	held 	in 	1983 	for
most 	nonprofessional 	employees 	of 	the University. 	In an
election 	conducted 	by the 	PERB 	for 	employees 	in 	the 	service
unit 	at 	LLNL, 	no 	employee 	organization received 	a majority of
the votes 	cast, 	and 	thus 	no 	organization was 	certified 	as 	the
exclusive 	representative 	for 	that unit.33
Pursuant 	to Section 3577(b)(2).4 new petitions are barred
for 	12 months 	following such an election. 	On August 	17, 	1984,
shortly 	after 	the 	12-month 	election 	bar 	expired, 	the 	Petitioner
2 PERB Case No. 	SF-PC-1005.
3 PERB Case No. 	SF-HR-10.
4 Section 3577(b) 	states 	in pertinent 	part:
No 	election 	shall 	be 	held 	and 	the 	petition
shall 	be 	dismissed whenever:
(2) 	Within the 	previous 	12 months
either 	an 	employee 	organization 	other 	than
the 	petitioner 	has 	been 	lawfully 	recognized
or 	certified 	as 	the 	exclusive 	representative
of 	any employees 	included 	in 	the unit
described 	in the petition, 	or 	a majority of
the votes 	cast 	in a 	representation election
held pursuant 	to 	subdivision 	(a) 	of
Section 	3577 were 	cast 	for 	"no
representation."
22

filed 	the 	instant 	Request 	for 	Recognition 	seeking 	a 	unit 	of
PSO's 	at 	LLNL. 	The 	University 	filed 	its 	response 	on October 	8,
1984, 	in which it doubted 	the 	appropriateness 	of 	the unit
requested.
On October 	30, 	1984, 	the PERB San Francisco Regional
Director 	issued 	an Order 	to 	Show Cause 	as 	to why 	the 	petition
should 	not 	be 	dismissed 	as 	inappropriate 	pursuant 	to 	the
Board's 	earlier 	decision 	that 	PSO's 	belonged 	in 	an 	LLNL 	service
unit. 	In a 	response 	to the Order 	to Show Cause, 	Petitioner
alleged 	that 	certain 	changes 	to 	employment 	conditions 	of 	PSO's
were 	sufficient 	to warrant 	the 	establishment 	of 	the 	requested
unit. 	On February 	11, 	1985, 	the 	PERB 	San Francisco 	Regional
Director 	ordered 	that 	a 	hearing 	be 	held 	to 	determine 	the
appropriateness 	of 	the 	request 	for 	recognition.
An eight-day hearing was 	concluded 	on May 	3, 	1985. 	A
transcript was 	prepared, 	briefs were 	filed, 	and 	the 	case was
submitted 	for 	decision on July 	3, 	1985.
EARLIER 	BOARD 	DECISION
Before discussing the 	facts 	as 	they currently exist, 	it 	is
helpful 	to 	review the Board's 	earlier 	decision 	regarding
PSO's. 	During 	the 	earlier 	proceeding, 	the 	petitioner 	took 	the
position that 	it was 	appropriate 	for 	PSO's 	to 	be 	in a 	separate
unit. 	Another petitioner, 	the California 	State Employees
Association and 	the 	University 	each 	took 	the 	position 	that
PSO's 	should 	appropriately 	be 	included 	in 	an 	LLNL 	service unit.
w
	3

In the hearing 	itself, 	four witnesses 	testified 	regarding
PSO's. 	Their 	total 	testimony was 	slightly 	less 	than 75 	pages
of 	transcript. 	The 	previous 	record 	established 	that 	prior 	to
1974 	PSO's 	had 	peace 	officer 	status.5 After 	1974 	only
sergeants 	and 	lieutenants 	retained 	peace 	officer 	status.
However, 	pursuant 	to 	the Atomic Energy Act 	of 	1954, 	PSO's
continued 	to 	carry 	firearms 	and were 	authorized 	to 	make
arrests. 	However, 	in so doing 	they were acting essentially as
private 	citizens 	rather 	than 	peace 	officers.
After 	PSO's were 	hired, 	they received 	approximately
200 hours 	of 	training, 	consisting of 	80 hours 	of 	classroom
training, 	40 hours 	of firearms 	training, 	and 80 hours 	of
on-the-job 	training. 	PSO's 	were 	required 	to 	obtain 	the 	same
security 	clearance 	as 	all 	other 	Laboratory 	employees.
PSO's worked 	all 	three 	shifts, 	and 	their 	duties 	included
checking 	clearance 	badges 	at 	entry 	points, 	escorting uncleared
persons 	through 	the 	facility, 	securing 	classified 	information
from view of 	uncleared 	persons, 	classified 	document
destruction, 	performing foot and motor 	patrol, 	traffic 	control
functions 	including 	escort 	of 	hazardous 	and 	toxic materials,
and 	in the event 	of 	a 	spill 	of 	toxic materials, 	establishing
traffic 	barriers 	in 	the 	area 	of 	the 	spill.
5Pursuant to subdivisions 	(d) 	and 	(e) 	of 	section 830.2 	of
the Penal 	Code.
4

In its decision, 	the Board made several 	findings. 	The
Board 	found 	it was 	appropriate 	to 	have 	employees 	of 	LLNL
excluded 	from systemwide units, 	thereby 	rebutting 	the
presumption of 	section 3579(c).66 Also, 	in PERB Decision
No. 	242-H, 	regarding craft units, 	the Board held that:
. 	. 	. 	the unique nature of the work carried
on at 	the Laboratory distinguishes 	it 	from
the 	rest 	of 	the University operations 	as
well 	as 	from the 	Lawrence 	Berkeley
Laboratory. 	The 	primary 	activity 	of 	the
facility 	is 	nuclear weapons 	research for 	the
federal 	government. 	The 	extent 	to which
radioactive 	and 	other 	hazardous 	materials
are used 	creates 	unique 	problems 	for 	the
employees. 	Security 	requirements 	pervade
the entire work environment; 	for example, 	as
a condition of 	employment, 	all 	Laboratory
employees 	must 	obtain 	security 	clearance.
The 	Laboratory 	is 	almost 	exclusively 	funded
with 	federal 	revenues 	and 	operates 	under 	a
contract 	with 	the 	United 	States 	Department
of Energy 	(DOE). 	For this reason, 	the
Laboratory 	is 	not 	primarily dependent 	upon
the 	State 	Legislature 	for 	its 	financial
resources 	as 	is 	the 	case with 	the 	other
University operations. 	Cf., 	Peralta
Community College District 	(11/17/78) 	PERB
Decision No. 77.
6 Section 3579(c) 	states:
There 	shall 	be 	a 	presumption 	that 	all
employees within 	an 	occupational 	group 	or
groups 	shall 	be 	included within a 	single
representation unit. 	However, 	the
presumption shall 	be 	rebutted 	if 	there 	is 	a
preponderance 	of 	evidence 	that 	a 	single
representation unit 	is 	inconsistent with 	the
criteria 	set 	forth 	in subdivision 	(a) 	or 	the
purposes 	of 	this 	chapter.
55

Personnel 	policy 	is 	governed 	by a 	contract
between 	the University 	and 	DOE. 	The
University, 	for 	example, 	must 	obtain DOE
approval 	for 	significant 	personnel 	decisions
including affirmative 	action plans, 	salary
increases, 	and 	changes 	in classification
specifications. 	The Laboratory's
classification 	scheme 	is 	different 	from 	the
rest 	of 	the University and. 	while 	some
classifications 	parallel 	those 	elsewhere,
many are unique 	to 	the 	Laboratory.
The Board also 	held 	that 	section 3579(f),7 requiring
separate units 	for 	peace 	officers 	did 	not 	apply because 	PSO's
no 	longer 	had 	peace 	officer 	status 	under 	the Penal 	Code.
The 	Board 	declined 	to 	follow 	its 	precedent 	regarding
separate 	guard 	units 	established 	in 	Sacramento 	City Unified
School District 	(1977) 	EERB 	(PERB) 	Decision No. 	30.8 In
Sacramento 	City 	the 	Board 	established 	a 	separate unit 	of
security guards, 	stating:
The 	employer 	is 	entitled 	to 	a 	nucleus 	of
protection 	employees 	to 	enforce 	its 	rules
and 	to 	protect 	its 	property 	and 	persons
without 	being 	confronted with 	a 	division 	of
loyalty 	inherent 	in 	the 	inclusion 	of
security officers 	in the 	same unit with
other 	classified 	employees.
7 Section 3579(f) 	states:
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.
8 At 	that 	time 	PERB was 	the 	Educational 	Employment
Relations Board 	(EERB).
66

In the 	Service Employees 	(supra) 	decision the Board 	held 	that
the 	policy of 	providing separate units 	of 	guards 	is 	for 	the
benefit 	of 	the 	employer, 	and 	that 	since 	the University did 	not
want 	a 	separate unit 	of 	guards, 	there was 	no 	reason to 	apply
that 	policy.
Citing 	Sweetwater Union High 	School 	District 	(1977) 	EERB
Decision No. 	4. 	the Board 	held 	that 	the hallmark of 	service
employees 	is 	the performance 	of 	routine manual 	labor, 	the
primary 	purpose 	of which 	is 	to 	provide 	a 	proper 	physical
environment 	and 	support 	services 	for 	students. 	Thus, 	while
their 	duties may vary, 	the working 	conditions 	of 	service
employees 	are 	similar. 	They share 	a 	strong
functionally-related 	community 	of 	interest 	in 	that 	they 	perform
physical 	laboring 	tasks 	to 	maintain 	the 	campus 	physical
environment 	for 	which 	the 	required 	levels 	of 	skill 	and 	training
do 	not 	greatly differ.
The 	Board 	stated 	that, 	like 	other 	service 	employees which
the petitioner 	also 	sought 	to 	represent. 	PSO's are,
. 	. 	. 	relatively unskilled employees
performing 	for 	the 	most 	part 	routine
physical 	tasks.
and 	that,
. 	. 	. 	because of the routine physical nature
of 	their work, 	they generally 	share 	common
interests 	and working 	conditions 	with 	other
service employees.
The 	Board 	further 	held 	that 	a 	separate 	representational 	unit
for 	PSO's would 	be 	inappropriate, 	with 	little 	to 	be 	gained
77

which would 	offset 	the 	negative 	effects 	of 	fragmentation 	and
proliferation of 	units. 	The Board 	concluded 	that 	in view of
the 	Laborers' 	petition to 	represent 	other 	service 	employees 	at
LLNL, 	a 	single unit 	of LLNL service employees, 	including PSO's.
was 	appropriate.
POSITION OF 	THE 	PARTIES
In the 	instant 	case, 	the University takes 	the 	position that
the 	Laborers' 	petition should 	be dismissed 	for 	several
reasons. 	The first 	is 	that during 	the 	initial unit
determinations 	PERB 	fashioned 	broadly-described 	generic 	units
and 	dismissed 	petitions 	for 	narrow 	single 	classification
units. 	Second, 	that 	PERB 	specifically 	found 	that 	a 	separate
representational 	unit 	for 	PSO's 	at 	LLNL was 	inappropriate.
Finally, 	the University argues 	that 	any changes 	in
circumstances 	which have 	occurred 	since 	the 	initial 	unit
determination hearings 	do 	not warrant 	the 	establishment 	of 	a
separate 	Laboratory PSO unit.
The Petitioner, 	on the other 	hand, 	argues 	that 	the Board's
initial 	unit 	determination 	should 	be 	reconsidered 	for 	two
reasons. 	First, 	the Board 	incorrectly declined 	to apply the
policy 	developed 	in 	Sacramento 	City 	Unified 	School 	District.
supra, 	in favor 	of 	having 	separate units 	for guards. 	The 	other
reason for 	reconsidering 	the Board's 	decision 	is 	that 	since 	the
earlier 	hearings, 	circumstances 	have 	changed and 	that, 	even if
it 	once was 	the 	case 	that 	PSO's 	were 	"relatively unskilled
88

employees 	performing 	for 	the most 	part 	physical 	tasks," 	that 	is
no 	longer 	the 	case.
FINDINGS 	OF 	FACT
Operations 	of 	the 	Laboratory
LLNL 	is 	one 	of 	three 	research 	laboratories 	operated 	by 	the
University under 	contract 	between 	the 	University and 	the 	U.S.
Department 	of 	Energy 	(hereafter 	DOE).9 Since 	its
establishment, 	the 	Laboratory's 	primary purpose 	has 	been the
design of 	nuclear weapons. 	Most 	of 	the 	research at 	the
Laboratory 	is 	classified 	and 	much 	of 	the 	research utilizes
toxic 	and hazardous 	substances, 	including 	special 	nuclear
materials. 	Access 	to and 	throughout 	the 	Laboratory 	is
restricted 	and 	virtually 	all 	employees 	must 	receive 	a 	special
security clearance 	known as 	a 	"Q clearance."
The 	Laboratory also 	runs 	an 	offsite 	explosive 	test 	area
known as 	Site 	300. 	This 	area 	encompasses 	ten square miles with
access 	controlled 	similar 	to 	that 	of 	the Laboratory.
There 	is 	a 	director 	of 	the 	Laboratory appointed 	by 	the
president 	of 	the University, 	a 	Laboratory associate director,
ten associate directors 	for 	programs 	and departments, 	and 	two
associate directors 	at 	large. 	Some 	of 	the associate directors
are 	functional 	or 	operational, 	and 	some direct programs.
9 The 	other 	two 	are 	Lawrence 	Berkeley 	Laboratory whose
employees 	are 	included 	within 	systemwide 	University 	bargaining
units, 	and Los Alamos National 	Laboratory 	in New Mexico, 	which
is 	not 	covered 	by HEERA.
9

Program associate 	directors 	are 	responsible 	for 	technical
aspects 	and 	funding 	of various 	jobs 	and 	programs 	at 	the
Laboratory. 	Functional 	or 	operational 	associate 	directors 	are
responsible 	for 	providing 	the 	capability 	for 	completing 	jobs
(e.g.. providing engineers, technicians, physicists, etc.).
Some 	of 	the 	directors 	have 	both 	functional 	and 	programmatic
responsibility.
The 	Laboratory associate director 	is James Kahn, 	who 	is
second 	in command 	at 	the 	Laboratory. 	Kahn 	is 	in charge 	of 	the
technical 	services 	program, 	which 	includes 	hazards 	control, 	the
environmental 	program, 	health and 	services, 	and 	the 	safeguards
and 	security 	program.
The 	safeguards 	and 	security 	program 	carried 	out 	by 	the
security department 	reports 	to 	John Toman.
Due 	to 	governmental 	concerns 	that 	the wave 	of 	terrorism 	in
Europe 	in the 	1970's would 	spread 	to 	the United 	States, 	and
particularly to nuclear 	facilities 	in the 	1980's. 	several
upgrades 	have 	been made 	in 	the 	Laboratory 	security 	systems.
The 	Laboratory 	is 	currently 	engaged 	in a 	$35 	million
security-oriented 	capital 	improvement 	project, 	and 	is
attempting 	to 	get 	additional 	money 	from Congress. 	The money 	is
to 	improve alarm systems, 	upgrade 	communications, 	build 	new
security facilities 	at 	Site 	300, 	and upgrade 	the access 	control
system. 	The 	additional 	money 	beyond 	the 	$35 	million 	is 	being
sought 	to upgrade 	the 	physical 	security 	structure 	of 	some 	of
10
•

the more 	sensitive 	facilities 	at 	the 	Laboratory. 	The
Laboratory also 	recently purchased 	92 	acres 	of 	land 	around 	the
Laboratory 	to 	establish a 	buffer 	zone 	for 	security purposes.
The 	Laboratory 	is 	planning 	to 	increase 	the 	size 	of 	the 	buffer
zone 	by an additional 	300 	acres 	over 	the 	next 	three years.
The 	security department 	is 	divided 	into 	three 	divisions.
The 	first 	is 	the 	personnel 	security division which has
responsibility 	for 	preemployment 	and 	other 	investigations,
central 	clearance, 	the 	badge 	offices 	and document 	control. 	The
second 	is 	the 	physical 	security 	division with 	responsibility
for 	physical 	and 	offsite 	security, 	information and 	computer
security, 	and communications access 	control. 	These first 	two
divisions 	are 	staffed 	for 	the 	most 	part 	by 	security
administrators who 	are 	sworn peace 	officers, 	clerical 	employees
and 	supervisory personnel. 	None 	of 	these 	employees 	are 	covered
by 	the 	petitioner's 	request 	for 	representation.
The 	third 	division within 	the 	security department 	is 	the
protective 	service 	division which 	is 	the 	subject 	of 	this
hearing.
Protective 	Service 	Division
The 	primary mission 	of 	the 	protective 	service 	division 	is
to 	protect 	special 	nuclear 	materials 	and 	to ensure 	adequate
protections 	and 	safeguards 	are 	in effect 	at all 	times. 	The
division 	also 	provides 	protection 	for 	Laboratory 	personnel,
visitors, 	property, 	buildings, 	equipment and classified
interests.
11

All 	the 	PSO's 	at 	LLNL work within 	the 	protective 	service
division, 	headed 	by Larry Chandler, 	a 	sworn peace officer.
Since 	the 	original 	unit 	determination hearing, 	the 	number 	of
PSO's 	has 	increased 	approximately 	25 	percent, 	from 	156 	to 	196.
Prior 	to 	1982 	applicants 	for 	PSO positions were 	initially
screened 	by 	the 	human 	resources 	staff 	to 	determine whether 	the
applicants 	met minimum qualifications. 	Applicants were 	then
interviewed 	by a 	lieutenant 	and were 	required 	to 	fill 	out 	a
security questionnaire. 	Offers 	of 	employment were 	then
extended.
In 	1982 	the process was 	changed 	to 	add 	a University police
department 	background 	investigation/verification 	of 	employment
that 	is 	specific 	to PSO's. 	Applicants 	are 	also now required 	to
undergo 	a written 	psychological 	profile 	and 	be 	interviewed 	by 	a
psychologist. 	The 	interview process 	has 	also 	changed. 	New PSO
applicants 	are 	interviewed 	using 	a 	process 	known as 	behavioral
events selection interview (BESI). 	In the BESI process, 	a
panel 	of 	three 	interviewers 	tries 	to measure 	an applicant's
characteristics 	by 	questioning 	him 	or 	her 	about 	previous
real-life 	stressful 	experiences 	and 	having 	the 	applicants
explain 	how they handled 	the 	situations. 	These 	additions 	to
the 	hiring 	process 	are 	not 	required 	for 	any applicants 	other
than PSO's.1 0
10 These 	examinations 	and 	BESI 	interviews 	are 	also 	given
to 	applicants 	for 	PSO positions 	at 	Lawrence Berkeley
Laboratories.
12

PSO applicants 	at 	LLNL must 	also 	pass 	a 	DOE 	physical
fitness 	test 	not 	given 	to 	any 	other 	Laboratory employees.
Details 	of 	this 	requirement will 	be 	discussed 	in a 	latter
section 	of 	this 	decision. 	Transferees 	into 	the division go
through 	basically 	the 	same 	process 	as 	outside 	applicants.
The 	hiring 	process 	for members 	of 	the 	service unit 	remains
the 	same as 	it was 	for PSO's 	prior to 	1982. 	There was
testimony, 	however, 	that at 	least one group of 	employees
outside 	the 	service unit, 	firemen, 	have had a 	three-member 	oral
interview process, 	a physical 	ability test, 	and a written
examination. 	This 	process was 	a 	cooperative effort 	to
establish an 	eligibility 	list 	for 	both 	the 	City 	of 	Livermore
and 	the 	Laboratory 	fire 	departments.
The 	Laboratory advertises 	for 	PSO's 	in 	the 	San Francisco
Chronicle, 	the Oakland Tribune, 	and 	the 	San Jose Mercury News.
The 	Laboratory has 	also 	recruited 	PSO's 	from 	the military. 	No
other 	members 	of 	the 	service unit 	are 	recruited 	by 	such methods.
Training
One 	area 	in which there 	has 	been 	a 	dramatic 	change 	since
the 	initial unit 	hearings 	is 	in the 	training given PSO's. 	At
the 	time of 	the 	initial unit determination hearings. 	PSO's
received 	approximately 	200 	hours 	of 	training. 	This 	training
was 	in two 	phases. 	The 	first 	phase 	occurred at 	the 	time 	of
initial 	hire 	and 	consisted 	of 	40 	hours 	each of 	classroom
training, 	firearms 	training, 	and 	on-the-job training.
13

The 	second 	phase 	of 	training 	took 	place 	after 	the 	PSO
received 	a Q clearance. 	It 	consisted 	of 	another 	40 	hours 	each
of 	classroom 	training 	and 	on-the-job 	training 	in 	the 	classified
areas 	of 	the Laboratory.
Now newly-hired 	PSO's 	complete 	an 	increasingly
sophisticated 	training 	academy 	identical 	in many 	respects 	to 	a
police 	academy. 	The 	academy 	itself 	lasts 	seven weeks.
Following 	completion of 	the 	basic 	academy, 	PSO's 	complete 	an
additional 	six weeks 	of 	field 	training on all 	three 	shifts.
Supervision during 	the 	field 	training 	has 	also 	increased, 	with
a 	field 	training 	officer 	filling 	out 	daily 	observation 	reports
on the 	trainee.
Following 	receipt 	of 	a Q clearance, 	the PSO receives 	an
additional 	four weeks 	of 	field 	training. 	Daily observation
reports 	are 	also used 	during 	this 	period.
Thus, 	the 	training 	time 	has 	increased 	from 200 hours 	to
almost 700 hours, 	or almost 	350 percent. 	However, 	the 	length
of 	the 	training 	is 	not 	the 	only change. 	The extent 	of 	the
training has 	also 	increased. 	One 	example 	illustrating 	this
change 	is 	that 	PSO's 	now train using a 	system known as 	the
multi-integrated 	laser 	engagement 	system 	(MILES). 	This
extremely 	expensive 	system was 	developed 	by 	the 	military 	in 	the
mid-1970's 	to 	simulate 	live 	fire 	scenarios. 	Small 	lasers 	are
attached 	to various weapons. 	The 	lasers 	have 	essentially the
ballistic 	characteristics 	of 	the weapon 	to which they are
14

attached. 	When a 	blank round 	of 	ammunition is used, 	a 	laser
beam 	impulse 	is 	sent 	out. 	Security forces 	participating 	in 	the
exercise wear 	special 	harnesses. 	When there 	is a near-miss,
the 	laser 	causes 	the 	harness 	to 	emit 	a 	chirping noise. 	When
the 	laser 	beam scores a direct 	hit, 	it 	causes 	the harness 	to
emit 	a 	steady tone. 	Thus, 	PSO's 	gain experience 	similar 	to
real 	attacks 	on the 	Laboratory.
In 	1984 	the DOE 	intensified 	its 	security 	inspection and
evaluation efforts. 	The 	inspections 	now are more
performance-oriented. 	As 	a 	result, 	the Laboratory has 	entered
into 	a 	concentrated 	training mode 	in 	preparation 	for 	the yearly
DOE 	inspections. 	The 	training 	has 	included 	force-on-force
exercises 	where 	certain PSO's 	act 	as 	an adversarial 	force
trying 	to 	breach 	the 	Laboratory 	security. 	PSO's 	also 	have 	been
sent 	to 	other DOE 	facilities 	as 	part 	of 	inspection 	teams.
PSO's 	participate 	as 	an 	adversary 	force 	in a 	force-on-force
exercise at 	the other 	facilities.
In preparation for demonstrations, 	PSO's 	have also 	received
specialized 	training 	in 	crowd 	control 	and 	arrest 	methods. 	One
witness 	who 	had 	also 	been 	trained 	in 	crowd 	control 	by 	the
Alameda 	County Sheriff's 	Department, 	testified 	that 	the
training 	he 	received 	at 	the 	Laboratory was 	superior 	to 	that 	at
the 	Sheriff's Department.
PSO's 	have 	received 	specialized 	training 	for 	the
Laboratory's 	executive 	protection program, 	which 	is 	designed 	to
prevent 	the 	kidnapping 	of 	high-level 	Laboratory 	officials.
15

PSO's 	also 	receive 	much 	specialized 	training 	in 	other 	areas
such as 	canine units, 	hostage negotiations, 	technical 	sweeps of
meeting 	rooms 	requiring 	special 	security, 	and 	SERT
techniques.11 This 	specialized 	training will 	be 	discussed 	in
greater 	depth 	later 	in 	the 	decision.
Of 	course, 	other 	employees 	at 	the 	Laboratory also 	receive
training. 	However, 	the 	record does 	not 	support a 	finding that
the 	training 	is 	in any way comparable. 	For 	example, 	the
University 	submitted 	evidence 	that 	employees 	such 	as 	gardeners
received 	training 	on pesticides, 	or 	that 	custodians 	received
training 	regarding 	the 	proper 	use 	of 	cleaning 	chemicals 	and
methods. 	However, 	the time spent 	in training, 	the quantity and
complexity 	of 	information 	received, 	and 	the 	liability 	to 	the
Laboratory 	for 	improper 	training 	all 	pale 	by 	comparison with
PSO 	training.
Hours
Once 	PSO's 	complete 	their 	training, 	they are assigned 	to
one 	of 	three 	shifts. 	Day 	shift 	is 	from 7:00 a.m. 	to 	3:30 	p.m..
swing 	shift 	from 	3:00 p.m. 	to 	11:30 	p.m.. 	and 	the owl 	shift
from 	11:00 	p.m. 	to 	7:30 	a.m. 	PSO's 	are 	given 	30 minutes 	for
lunch. 	However, 	they are 	often on call 	and 	are 	therefore 	often
paid 	during 	lunch. 	Most 	other 	Laboratory employees work
8:00 	a.m. 	to 	4:45 	p.m., 	with a 	45-minute 	lunch break. 	The
11 SERT 	is 	the 	Laboratory equivalent 	of 	a 	swat 	team.
16

staggered 	shift 	starting 	times 	allow PSO's 	to 	report 	to 	the
squad 	room for 	their 	roll 	call 	meeting and 	still 	be 	in place 	at
their 	assignments when other 	employees 	change 	shifts.
PSO's 	report 	to 	a 	squad 	room prior 	to 	their 	shift where
they 	receive 	information 	about 	assignments 	and 	other 	orders 	or
bulletins. 	Overtime 	is 	mandatory 	for 	PSO's 	and 	is 	assigned 	on
a 	draft 	system based 	upon 	the 	amount 	of 	overtime 	the 	PSO worked
during 	the 	previous week. 	PSO's 	are 	the 	only group 	of
employees 	on 	such 	an 	overtime 	system.
Salary
Wage 	and 	salary 	ranges 	for 	all 	employees 	at 	the 	Laboratory
are 	set 	forth 	in the University's 	contract with the DOE. 	The
ranges 	are 	established 	by a 	process 	which uses 	salary
committees 	appointed 	by 	the 	Laboratory. 	The 	committee
responsible 	for 	salary 	ranges 	for 	PSO's 	is 	also 	responsible 	for
those 	of 	mechanical 	and 	electrical 	technicians, 	hazard 	control
technicians, 	environmental technicians, 	fire fighters,
gardeners, 	custodians and 	laborers.
Transfers
Since 	1980 	almost 	30 	PSO's 	have 	transferred 	into 	other
positions at LLNL. 	Of 	those, 	however, 	only three have
transferred 	into 	positions within the 	service unit. 	Since 	1980
only 	three 	individuals 	have 	transferred 	into 	the 	PSO 	position
from other 	positions 	at LLNL. 	Of 	those 	three, 	one had 	been a
PSO years 	earlier. 	Only one 	of 	the 	three 	had 	been employed 	in
a 	position within 	the 	service 	unit.
17

Equipment
All 	PSO's 	have 	certain 	equipment 	necessary 	to 	perform 	their
duties. 	PSO's wear uniforms 	very 	similar 	to 	those worn by
police 	officers. 	Recent 	changes 	have 	been made 	in parts 	of 	the
uniform for 	tactical 	reasons. 	For 	instance, 	rain gear 	has 	been
changed 	from yellow to 	black 	because 	it 	is 	easier 	for 	PSO's 	to
conceal 	themselves 	in black 	if 	they are 	engaged 	in a 	tactical
maneuver. 	The 	color 	of 	patches 	used 	has 	also 	been 	changed 	from
yellow to 	blue 	for 	the 	same 	reasons.
PSO's 	carry a 	police revolver, 	two 	speed 	loaders, 	police
baton, 	a radio, 	mace, 	knife, 	handcuffs and badge. 	Prior to
mid-1980, 	PSO's did not carry speed 	loaders, 	handcuffs, 	mace,
nor 	a 	baton.
Since 	the 	time 	of 	the 	initial 	unit 	determination, 	the 	fire
power 	of 	PSO's 	has 	increased. 	Shotguns 	have 	been added 	to 	the
regular 	complement 	of 	patrol 	cars, 	and 	PSO's must 	qualify not
only with 	their 	revolvers 	but with an H&K automatic weapon, 	a
12-gauge 	shotgun, 	and must 	be 	familiar with the H&K model 	20
light machine 	gun.
PSO's 	are 	also 	trained 	in 	the use 	of 	an armored 	personnel
carrier 	known as 	a 	"peacekeeper." 	The vehicles 	are 	armed with
H&K model 	33 	automatic weapons, 	and 	are 	being prepared 	for
installation of 	an H&K model 	21 	light 	machine 	gun. 	Prior 	to
1980, 	these were 	operated 	only 	by 	supervisors 	and 	sworn 	peace
officers. 	Prior 	to 	1980 	patrol 	vehicles 	had 	only yellow
18

caution 	lights without 	police 	package 	red 	lights. 	The 	patrol
cars 	currently used 	at 	the 	LLNL 	resemble 	police 	cars 	in 	every
manner. 	At 	Site 	300. 	Ford 	Broncos 	equipped with police 	package
red 	lights 	are used. 	The Ford 	Broncos 	are 	also 	equipped with
H&K 33 automatic weapons, 	shotguns, 	police radios, 	and
loudspeakers.
The department 	also 	has 	use 	of 	helicopters as 	a
surveillance 	tool. 	PSO's 	are used 	as 	helicopter 	observers 	in
order 	to 	spot 	aggressors 	or 	fleeing 	individuals. 	The
Laboratory 	has 	also 	recently 	purchased 	an X-ray machine 	to 	aid
in searches.
Special 	teams 	such as 	hostage negotiators, 	canine units,
and 	SERT 	team members 	carry 	other 	specialized 	equipment 	as 	well
as 	the 	standard 	equipment 	listed 	above. 	That will 	be 	discussed
in greater 	detail 	later 	in 	the 	decision.
DOE Medical 	and 	Physical 	Fitness 	Standards
In December 	1984 	the DOE 	adopted 	certain medical 	and
physical 	fitness 	standards 	applying 	only 	to PSO's. 	For
example, 	in meeting the defensive 	combative standard. 	PSO's
must 	be 	able 	to 	run 40 yards 	starting 	from a 	prone 	position 	in
8 	seconds, 	and 	run one mile 	fully equipped 	in 8 minutes 	and
30 seconds.
These 	standards were 	adopted 	because, 	according 	to 	the DOE:
Recently. 	DOE 	has 	evaluated 	its 	security
operations 	and 	concluded 	that 	the 	increasing
threat 	of 	terrorist, 	paramilitary and 	other
criminal 	as well 	as 	civil 	threatening
19

activity 	requires 	that 	DOE 	strengthen 	its
security capabilities. 	DOE 	believes 	that
medical 	and 	physical 	fitness 	of 	protective
force 	personnel 	is 	essential 	to 	its 	security
operations, 	and 	thus 	to 	the 	country's 	common
defense and 	security. 	Furthermore. 	DOE
believes 	that 	its 	protective 	force
personnel, 	and 	especially 	its 	security
inspectors, 	must 	be 	in good 	physical
condition 	in order 	to withstand 	terrorist 	or
other 	adverse 	activities.
Implementation of 	the 	standards 	begins with a 	medical 	exam
through 	the 	Laboratory medical 	department. 	It 	may also 	include
individually 	supervised 	exercise 	programs 	through 	Cal 	State
University at 	Hayward 	prior 	to 	taking 	the 	physical 	fitness 	test
itself. 	If 	PSO's 	are not 	allowed 	to 	take 	the 	fitness 	exam due
to medical 	restrictions, 	there 	is an appeal process. 	If a PSO
takes 	the 	exam and 	fails, 	there 	is 	a 	grace 	period 	for 	extra
conditioning. 	PSO's 	are 	required 	to 	re-test 	and meet 	the
standards 	on an annual 	basis 	thereafter. 	If employees
ultimately do 	not 	qualify, 	they would 	be 	removed 	from any 	armed
position.
As 	of March 1985. 	189 	PSO's 	have 	taken the physical
examination. 	Thirty-one 	have 	been 	cleared 	to 	take 	the 	physical
fitness 	test, 	and 	97 	have 	been cleared 	to 	participate 	in
physical 	fitness 	training 	programs 	at 	California 	State
University. 	Hayward. 	Thirteen PSO's were 	found 	to 	be medically
restricted, 	and 	36 were 	awaiting 	further medical 	evaluation.
At 	the 	time 	of 	the March report, 	only 20 PSO's 	had 	passed 	both
the 	medical 	and 	physical 	fitness 	qualifying 	standards.
20

As 	a 	result, 	there 	is 	no doubt 	that 	some PSO's will 	lose
their 	jobs 	as 	they currently 	exist. 	The 	Protective 	Service
Division 	has 	identified 	approximately 	24 	positions 	which may 	be
converted 	to 	unarmed 	positions 	in an attempt 	to 	absorb 	some 	of
those 	not 	able 	to meet 	the 	qualifying 	standards.
Duty Assignments 	of 	PSO's
The division's general order #1, 	revised 	in 1977, 	sets
forth 	the 	regular 	activities 	of 	the 	division to 	include
(1) 	control 	of 	access 	to 	the 	Laboratory Site and 	to 	Limited 	and
Exclusion Areas; 	(2) 	immediate 	response to Protective Alarm
Systems; 	(3) 	patrols and surveillance, 	both on foot and by
vehicle; 	(4) 	inspection of 	buildings 	and areas during off-shift
hours; 	(5) 	response to calls related to accidents, 	injuries,
fires 	and complaints; 	(6) 	enforcement 	of 	the 	laws 	of 	the
Federal 	Government. 	State 	and 	County, 	and 	rules 	and 	regulations
of 	the 	University 	of 	California 	including 	the 	Laboratory's
traffic and parking regulations; 	(7) 	escort of visitors,
construction or 	other personnel 	as 	necessary; 	(8) 	maintenance
of 	order at all 	times; 	(9) 	arrests 	and 	related court
appearances, 	under appropriate circumstances; 	(10) 	inspection
of 	vehicles, 	containers 	and 	persons 	for 	contraband 	items under
appropriate circumstances; 	(11) 	destruction of classified
documents as directed; 	(12) 	investigations and 	reports as
required.
Access 	control 	is 	a major 	function of 	PSO's 	and 	has
continued much the 	same 	as 	in the 	past. 	The 	Laboratory has
21

various 	areas 	of 	differing 	security 	levels. 	Areas 	containing
special 	nuclear 	materials 	are 	naturally 	the 	most 	restricted.
Due 	to a 	great 	deal 	of 	expansion at 	the Laboratory, 	the number
of 	different 	security areas 	has 	increased, 	but 	the 	basic
concept 	has 	remained 	the 	same. 	PSO's 	staff 	guard 	houses 	and
check 	each 	individual 	entering 	to 	ensure 	they 	have 	security
clearance. 	PSO's 	must 	know the various 	security areas 	and
various 	badge 	requirements 	for 	those 	areas.
When an 	individual 	who 	is 	not 	cleared 	for 	various 	security
areas needs access 	to them, 	the 	individual must 	be 	accompanied
into 	the 	security area 	by an escort. 	An example would 	be 	a
building 	contractor 	doing 	construction work 	inside 	the 	security
area. 	PSO's 	must 	not 	only accompany non-cleared 	individuals,
but must 	also 	check 	the 	area 	for 	security problems. 	This 	can
entail 	a 	preview of 	the 	area 	to 	ensure 	that 	confidential
documents 	are not 	exposed, 	safes 	are 	locked, 	doors 	are 	closed,
etc. 	Although this 	function 	is 	supposed 	to be done 	by PSO's 	or
security administrators 	(peace 	officers), 	lately the PSO's 	have
been 	too 	busy 	to 	do 	all 	the work 	and 	others 	have 	had 	to 	fill
in. 	This 	arrangement 	is 	expected 	to 	be 	temporary until 	PSO's
can resume 	all 	escort duties.
An 	extremely 	sophisticated 	badge 	identification 	system 	is
currently 	being planned 	by 	the 	Laboratory. 	The 	Secure
Integrated 	Livermore Alarm System 	(SILAS) 	will 	increase 	the
security. 	However, 	the 	system will 	be maintained 	by
22

technicians 	rather 	than PSO's. 	Although procedures 	for 	PSO's
may 	be 	somewhat 	altered 	under 	the 	new system, 	their 	basic
duties 	regarding 	access 	control 	should 	not 	change 	appreciably.
As 	part 	of 	the access 	control 	function, 	PSO's 	also 	conduct
searches 	of 	vehicles 	and 	hand-carried 	packages 	entering 	the
Laboratory. 	This 	function 	is 	not 	new, 	although 	the frequency
and 	extent 	of 	searches 	has 	increased 	since 	the 	new procedures
were 	implemented 	in October 	1984. 	Since October 	1984, 	searches
using metal 	detectors 	have 	been 	conducted 	on a 	random basis.
These searches have, 	in fact, 	discovered substances unlawful 	to
bring 	onto 	the 	Laboratory premises.
PSO's 	also maintain 	regular 	foot 	and 	motor 	patrols. 	Foot
patrols 	include 	duties 	such as 	checking 	building 	locks 	and
checking 	interiors 	to 	ensure 	no 	confidential 	documents 	have
been 	left out. 	If documents 	are 	left out, 	the PSO takes 	the
document 	and makes 	out 	a 	security report. 	Motor 	patrols 	are
done 	in 	the 	Laboratory police 	cars 	and 	also 	include 	patrols 	on
the 	public 	perimeter 	roads 	outside 	the 	Laboratory.
The 	Laboratory maintains 	an 	extensive 	protective 	alarm
system, 	including many types 	of 	alarms. 	When alarms 	go 	off.
PSO's 	initiate a 	tactical 	response 	to 	the 	alarm. 	A tactical
response 	is 	one 	in which PSO's 	use 	techniques 	of 	cover 	and
concealment 	in order 	to 	best 	observe 	the area 	or 	surprise 	an
intruder. 	Many of 	the 	techniques 	are military combat
techniques.
23

PSO's 	also 	perform traffic 	control 	functions 	at 	the
Laboratory, 	including accident 	investigations 	and 	issuing
parking 	citations 	and moving violations. 	If 	a 	Laboratory
employee 	receives 	three or more 	tickets, 	a 	report 	goes 	to 	the
employee's 	supervisor who 	may 	take 	disciplinary 	action 	if
he/she feels 	it 	is appropriate. 	There were, 	however, 	no
specific 	examples 	of 	any Laboratory 	employees 	being disciplined
for 	parking violations. 	Traffic 	officers 	also 	investigate
accidents 	off 	the 	Laboratory 	premises 	if 	Laboratory vehicles 	or
Laboratory 	personnel 	are 	involved. 	PSO's 	have 	also 	assisted
local 	law enforcement 	agencies 	with 	traffic 	control 	functions
outside 	the 	Laboratory when 	traffic 	lights 	go 	out 	during
demonstrations 	or when accidents 	occur.
In 	1983 	eight 	PSO's were 	sent 	to 	a 	special 	traffic 	school
at 	Los Medanos 	College. 	The 	class 	involved demonstration and
classroom 	instruction 	regarding 	investigation 	and 	documentation
of 	traffic 	accidents. 	The 	PSO's 	from the 	Laboratory were 	the
only attendees who were 	not 	sworn peace 	officers. 	All 	of 	the
attendees 	received 	college 	credit 	for 	the 	course.
PSO's 	are 	also 	responsible 	for 	the 	destruction 	of
classified 	documents. 	At 	scheduled 	intervals. 	PSO's 	collect
large 	amounts 	of 	documents 	and 	transport 	them to a 	huge
shredder. 	Depending upon the 	nature 	of 	the documents. 	PSO's
either 	feed 	the material 	into 	the 	machines 	themselves 	or
supervise 	custodians who 	feed 	the 	documents 	into 	the machine.
24

Although 	the 	amount 	of 	this work 	has 	increased 	since 	the
earlier 	hearing and 	the 	procedure 	has 	become more 	formal, 	the
function 	itself 	has 	remained 	much 	the 	same.
The 	heart 	of 	the 	division's 	communication 	system at 	the
Laboratory 	is 	the 	console, 	which 	is 	staffed 	by PSO's. 	Console
operators 	check 	employees 	in 	and 	dispatch 	officers 	to 	respond
to 	alarms 	and 	complaints. 	They also 	receive 	all 	of 	the 	calls
of 	PSO's 	on patrol. 	The 	console 	is 	the 	communication center
for 	the 	command 	centers 	for 	demonstrations 	and 	crises 	at 	the
Laboratory. 	Console 	operators 	also 	operate 	surveillance
cameras 	to assist PSO's 	in the 	field. 	Since 	1980 	the number 	of
such 	cameras 	has 	increased 	by 	two 	and 	one-half 	times. 	The
number 	of 	TV booths 	has 	also 	risen from 7 	in 	1980 	to 	47
currently. 	The 	number 	of 	motion detectors 	has 	also 	increased
dramatically.
The 	console 	is 	tied 	in with 	the 	police 	information 	network
(PIN) 	which 	includes 	other 	law enforcement 	agencies 	and 	their
computers, 	and 	the National 	Crime 	Information Center 	of 	the
Department 	of Justice. 	This 	enables 	console operators 	to 	run
warrant 	checks. 	Although PIN existed 	previously. 	PSO's 	did 	not
have access 	to 	it until 	1981. 	when the Laboratory first
obtained 	the 	necessary equipment. 	Console 	operators 	receive
three days 	of 	training on the 	equipment. 	The PSO's 	taking the
training were 	the 	only 	attendees 	who 	were 	not 	sworn 	peace
officers.
25

Prior 	to 	1981 	there were 	no written 	instructions 	for
operation of 	the 	console. 	At 	that 	time 	a 	console 	instruction
book was 	first 	created. 	The 	document 	has 	proven to 	be
insufficiently detailed, 	so 	a 	new console 	training document 	is
currently 	being 	prepared.
Within the 	last 	two years, 	the 	security surrounding 	the
console 	itself 	has 	also 	been upgraded. 	The 	entire 	area 	housing
the 	console 	has 	been 	"hardened." 	Heavy 	steel 	doors with 	an
electric 	catch 	replaced 	a 	pull-type 	swinging door. 	Previously
the 	building 	itself was 	not 	locked. 	Now a 	camera 	system has
been 	installed 	and 	the 	building 	has 	been 	locked 	down, 	with
access 	only by key or 	at 	an entry point 	by a 	sergeant's 	office.
During demonstrations, 	PSO's 	play a 	major 	role 	in crowd
control 	and 	arrests. 	Prior 	to 	1982 	there 	had 	not 	been any
major 	demonstrations 	at 	the 	Laboratory 	requiring 	such 	efforts.
Prior 	to 	1980, 	trespassers were 	generally escorted 	off 	the
premises 	after 	identifying 	themselves. 	Now trespassing usually
leads 	to 	arrest. 	PSO's 	have 	participated 	in tactical 	teams 	for
crowd 	control 	during 	demonstrations, 	and 	they arrested 	and
forcibly removed 	demonstrators 	from the 	premises. 	PSO's 	booked
individuals, 	filled 	out arrest 	reports, 	searched 	individuals,
fingerprinted 	and 	photographed 	them. 	They also 	have
transported 	those 	arrested 	to 	local 	jails 	and 	juvenile 	halls.
In conjunction with demonstrations, 	they essentially do 	all 	the
work 	commonly done 	by deputy 	sheriffs 	or 	other 	peace 	officers.
26

In 	keeping with 	their 	responsibility 	to 	enforce 	the 	laws.
demonstrations 	are 	not 	the 	only 	time when PSO's 	make arrests.
There was 	testimony by PSO's 	about 	a 	1984 	arrest 	involving 	a
stolen vehicle, 	another 	for possession of 	illegal 	drugs, 	and
another 	for 	drunk 	driving 	and 	failure 	to 	appear.
Since 	1980 	PSO's 	have 	been 	sent 	off-site 	to 	assist 	other
agencies 	and DOE facilities. 	For 	example. 	PSO's were sent 	to
Los Angeles 	to assist 	in security for 	the Olympics. 	In 	1983.
50 	PSO's were sent 	to U.C.L.A. 	to assist 	in security for a
large 	Iranian demonstration. 	In April 	1985 	PSO's were 	sent 	to
the 	University's 	Berkeley 	campus 	to 	assist 	with 	anti-apartheid
demonstrations. 	PSO's 	have also 	assisted 	other DOE 	facilities
such as Savannah River 	(Georgia). 	Oakridge 	(Tennessee), 	and
Sandia 	Laboratories, 	adjacent 	to LLNL. 	Canine units 	have also
been 	sent 	to 	assist 	the 	Livermore 	police 	department 	and 	the
Alameda 	County 	sheriff's 	department.
Individual 	PSO's 	have 	been assigned 	a variety of
assignments 	such as 	teaching weaponless 	self defense, 	field
training officers, 	firing range masters, 	affirmative action
coordinator, 	giving 	security 	briefings 	to 	new Laboratory
employees, 	and 	performing some 	of 	the 	functions 	of 	an armorer.
PSO's 	have 	also 	attended 	communication 	circles which 	occur
approximately once 	a 	month. 	At 	the 	communication 	circles 	PSO's
discuss 	with 	security 	department 	management 	issues 	which
concern PSO's, 	such as 	the DOE physical 	fitness 	standard.
27

Although 	other 	employees 	sometimes 	meet 	in groups 	to 	discuss
safety 	issues 	or 	the 	implementation of 	new equipment 	or
processes, 	the communication circles 	appear 	to 	be unique 	to
PSO's.
Specialty 	Functions
In 	1981 	the 	Laboratory 	established 	a 	PSO special 	emergency
response team 	(SERT). 	SERT is 	the Laboratory equivalent to a
SWAT 	team. 	SERT members 	are 	selected 	after 	a written
psychological 	examination 	and 	an 	interview with 	a 	three-member
panel. 	SERT members 	are on call 	and 	rotate every week, 	so 	that
a 	team 	is 	always 	available. 	Slightly over 	10 	percent 	of 	the
PSO's 	are assigned 	to SERT.
SERT members 	receive 	special 	training 	on a 	regular 	basis.
Team members 	received 	initial 	training 	from one 	of 	two
facilities 	utilized 	by the 	Laboratory. 	The 	first was 	a 	SWAT
academy 	run by the FBI 	and 	the 	second was 	a DOE academy, 	where
future 	training will 	also 	take 	place.
Testimony 	regarding 	the 	FBI 	SWAT 	academy 	indicated 	that 	the
basic 	thrust 	of 	the 	training was 	how to 	neutralize 	a 	situation
where an 	individual 	or 	a 	group 	has 	taken hostages. 	When
everything 	else 	has 	been tried, 	the 	last 	resort would 	be 	to
enter 	the 	area 	and 	kill 	the 	hostage-takers without 	harming 	the
hostages. 	To 	that 	end, 	members 	learn skills 	such as 	repelling
out of windows, 	off buildings 	or 	from a 	helicopter, 	entering
buildings 	and 	taking 	positions 	both 	as 	individuals 	and 	teams
28

without 	being 	seen, 	and 	entering 	rooms 	to 	kill 	the 	hostage
takers. 	Trainees 	also 	received 	additional weapons 	training
including a 	combat 	stress 	course where 	the 	officer 	must
determine 	in a 	limited 	number 	of 	seconds whether 	the 	target 	is
friendly 	or 	an enemy.
In contrast to 	the FBI 	training, 	the DOE training 	is much
more 	of 	a military approach. 	Although many of 	the 	same 	skills
are taught 	(such as repelling, 	etc.), 	the tactical approach is
different. 	This 	is 	because 	the DOE's main concern 	is 	the
protection of 	special 	nuclear 	materials, 	rather 	than concerns
regarding hostages, 	a 	typical 	SWAT team concern. 	For
Laboratory purposes, 	the DOE 	training 	has 	made 	the FBI 	SWAT
training 	somewhat 	outmoded. 	This 	shift 	in 	emphasis 	on 	training
is 	consistent with 	the underlying 	need 	for 	such 	teams 	at 	the
Laboratory. 	SERT was 	initially established 	out 	of 	concern that
an 	employee 	could 	have 	mental 	problems 	and 	take 	hostages. 	That
concern 	now seems 	to 	be 	overshadowed 	by 	a 	fear 	of 	terrorists
seizing 	special 	nuclear 	materials.
PSO's 	on SERT duty are 	required 	to 	carry a 	pager 	and 	must
be 	able 	to 	respond 	to 	the 	Laboratory 	fully 	equipped 	within 	one
hour. 	They are 	not 	allowed 	to 	drink 	alcohol 	or 	travel 	outside
that 	one-hour 	radius 	during 	the 	time 	they are 	on call. 	SERT
team members 	have 	special 	insurance 	provided 	for 	them 	by 	the
Laboratory.
SERT members 	are assigned 	special 	equipment. 	They have 	a
special 	type 	of microphone 	known as 	a 	lip-mike 	in order 	to 	free
29

their 	hands 	from radio 	operations. 	They also 	carry repelling
ropes, 	Swiss seats, 	gas masks, 	bullet-proof vests, 	fishnet-type
vests with compartments, 	special 	handcuffs, 	rechargeable
flashlights, 	door 	jammers 	and mirror 	devices. 	SERT members
also 	have 	special weapons 	such as 	the MP 	5 	submachine 	gun with
a 	silencer, 	and 	an H&K-33 	automatic weapon. 	The 	SERT 	team also
has 	sniper 	rifles with scopes 	and 	tripods. 	The 	team also 	has 	a
van with a 	set 	of 	programmable 	and voice 	confidential 	radios.
If hostages are taken, 	the department has PSO's 	trained as
hostage 	negotiators. 	Hostage 	negotiation 	teams 	began 	some 	time
after 	1981. 	Negotiators 	set up 	equipment 	to 	enable 	them to
talk 	to 	the 	hostage-takers 	and 	negotiate with 	them, 	attempting
to 	neutralize 	the 	situation without 	anyone 	being hurt. 	They
also work 	closely with 	SERT, 	gathering 	information 	for 	SERT 	in
case 	negotiations 	fail.
Negotiators 	are 	selected 	after 	a 	written psychological
examination and 	two 	interviews, 	one of which is done by a
psychologist. 	Once 	they have 	been 	trained, 	the hostage
negotiators 	are 	included 	on a 	statewide 	list 	so 	that 	they may
be 	available 	to 	assist 	other 	negotiators 	in hostage 	situations.
At 	the 	scene of 	an 	incident, 	negotiators wear 	special
windbreaker 	jackets with 	the word 	"negotiator" 	written 	in 	large
letters 	on 	the 	back. 	This 	enables 	them to 	be 	easily
identifiable when working 	in 	the 	emergency 	command 	center.
Negotiators 	are 	assigned 	other 	special 	equipment 	such as 	tape
30

recorders, 	phones 	and 	paraphernalia 	to 	enable 	them to 	hook up
to 	existing phone 	lines 	and 	talk 	to 	the 	suspects.
When 	the 	Laboratory 	conducts 	a 	confidential 	meeting 	or
conference, 	PSO's 	may provide 	security 	by doing a 	"technical
sweep" 	of 	the meeting room. 	Prior 	to 	1981, 	PSO's would 	go 	into
a 	meeting 	room and 	look under 	chairs 	and 	tables 	for 	listening
devices. 	They also 	provided 	typical 	security functions 	such as
locking doors, 	etc. 	After 	1981, 	specialized 	training was
provided 	and 	technical 	sweep 	teams 	were 	selected. 	Although 	the
basic 	function 	of 	removing 	anything which would 	compromise 	the
confidentiality of 	the meeting 	or 	conference 	is 	the 	same, 	the
sophistication 	level 	of 	the 	technical 	sweep has 	increased.
Technical 	sweep 	teams 	have 	been used 	in 	preparation 	for
conferences 	throughout 	the 	state. 	PSO's 	may also 	be 	called
upon 	to 	physically guard 	the 	premises 	24 	hours 	a 	day for 	the
duration of 	any 	conference.
Another 	special 	function which 	is 	new since 	the 	initial
unit 	hearing 	is 	the 	canine unit. 	First used 	in 1983. 	the
Laboratory now has 	three 	canine units. 	The dogs 	are utilized
as 	attack dogs 	or 	for 	protection or 	tracking. 	The primary 	job
of 	one 	of 	the canine units 	is 	to 	search for explosives. 	That
particular 	dog was 	brought 	from Holland 	after 	months 	of
training, 	at a cost 	of $8,400. 	The PSO assigned to the dog
then 	spent 	over 	a month 	in 	intensive 	training with the dog as 	a
team. 	The 	training 	covered 	both 	obedience 	training 	as well 	as
explosives work. 	Follow-up 	training 	is 	done 	on a monthly basis.
31

PSO canine 	officers work different 	hours 	than other 	PSO's.
They 	take 	their 	dogs 	home with 	them after work, 	and 	are
responsible for 	the dog's 	care, 	feeding and 	grooming. 	The
Laboratory provides 	food 	and 	pays 	for 	all 	the veterinary 	bills.
Canine units 	use 	specially marked 	patrol 	cars which are
also 	equipped with 	special 	radios, 	so 	that 	they may 	communicate
with 	the 	SERT 	team. 	The 	explosive unit 	is 	also 	equipped with a
small 	camera 	for 	photographing 	possible 	explosives.
Other 	Guard 	Units
PSO's 	at 	the 	Lawrence 	Berkeley 	Laboratory are 	included
within 	the 	service unit. 	The 	exclusive 	representative 	and 	the
University 	have 	negotiated 	a 	collective 	bargaining 	agreement
which was 	less 	than a year 	old 	at 	the 	time 	of 	the hearing. 	The
petitioner 	submitted 	evidence 	that 	guards 	at 	all 	other 	DOE
facilities 	are 	in separate 	bargaining units. 	However, 	the
University 	put 	on 	evidence 	that 	security 	services 	at 	those
facilities 	are 	provided 	by 	independent 	contractors.
DISCUSSION
Unit 	descriptions 	are 	not 	cast 	in concrete. 	Under 	the
circumstances 	of 	this case, 	i.e., 	where no employee
organization received a majority of 	the votes 	cast 	in the
earlier 	election, 	any employee 	organization may 	file 	a 	petition
to 	request 	any 	configuration 	of 	unrepresented 	employees,
including 	any 	or 	all 	of 	the 	employees 	covered 	by 	the 	earlier
Board 	decision. 	Such a 	petition 	is 	limited 	only by the
32

timeliness requirements 	of section 3577(b)(2). 	which prohibit a
representation petition 	from 	being 	filed within 	12 	months 	of
the 	earlier 	representation election. 	The 	holding 	of 	any
earlier 	unit 	determination decision 	is 	binding 	only 	to 	the
extent 	that Board 	precedent 	has 	remained 	the 	same, 	and 	that 	the
facts 	as 	they currently exist 	compel 	a 	similar 	finding.
In this 	case, 	although PERB precedent has 	remained
unchanged, 	the 	facts 	as 	they currently exist are 	sufficiently
different 	from 	the 	facts 	upon which 	the 	earlier 	Board 	decision
was 	based 	to warrant 	a 	different 	conclusion.
In the 	earlier decision, 	the Board, 	based upon a 	scant
72-page 	record, 	found 	that 	PSO's were 	relatively unskilled
employees 	performing 	routine 	physical 	tasks, 	creating 	a 	common
interest with 	other 	service 	employees. 	A review of 	the 	record
in the 	current hearing 	leads 	to 	the 	conclusion that, 	because 	of
the 	threat 	of worldwide 	terrorism and 	the 	fear 	that 	terrorists
may 	try 	to 	steal 	special 	nuclear 	materials 	from DOE 	facilities,
the 	Laboratory has 	engaged 	in a 	continuing 	process 	of
developing 	the 	PSO's 	into 	an 	increasingly 	sophisticated
paramilitary 	security 	force.
Nowhere 	is 	this 	change more 	evident 	than 	in the 	training
PSO's 	receive. 	The 	training currently received 	is 	similar, 	if
not identical, to 	a 	standard 	police 	academy. 	The quantity of
training has 	increased 	by 3 	1/2 	times up 	to 700 hours, 	and 	the
sophistication 	level 	has 	also 	increased. 	This 	is 	not 	only a
33

change 	from previous 	PSO training, 	but 	is 	also 	significantly
different 	from 	training 	levels 	of 	other 	service 	unit
employees. 	Although other 	service 	employees 	do 	receive
training 	(e.g.. 	custodians 	regarding 	cleaning 	techniques. 	and
gardeners 	regarding pesticides), 	the amount 	and 	sophistication
level 	of 	other 	service 	employees' 	training 	is 	nowhere
comparable 	to 	the PSO's. 	A comparison of 	the 	training
materials 	in evidence makes 	that 	obvious. 	While PSO's 	are
being 	taught 	how to 	protect 	nuclear 	materials 	from 	terrorists,
other 	service 	employees 	are 	taught 	how to 	clean a 	bathroom or
spray for 	bugs. 	Except 	for 	training 	on 	items 	common to 	all
Laboratory 	employees, 	there 	is 	almost 	no 	relationship 	between
PSO 	training 	and 	the 	training 	of 	other 	service unit 	employees.
PSO's 	are 	now treated 	differently 	than 	other 	service
employees 	in the manner 	in which 	they are 	recruited, 	screened
for 	employment, 	and hired. 	Their 	hours 	of 	employment 	are not
the 	same as 	other 	employees, 	nor 	is 	the method for assignment
of 	overtime. 	Although PSO salary ranges 	are similar 	to 	other
service 	employees, 	no 	other 	service 	employees 	receive 	pay for
being on call, 	such as while 	eating 	lunch or 	for 	SERT team
members who 	are not working 	but 	are 	still 	on call.
The DOE 	physical 	fitness 	requirements 	are 	another 	crucial
change 	from 	circumstances 	as 	they 	existed 	during 	the 	initial
unit 	determination proceeding. 	The 	fitness 	requirements 	are
not 	only evidence 	of 	a 	conscious 	shift 	to 	a more 	professional
34

security force, 	but 	they also 	distinguish PSO's 	from all 	other
Laboratory 	employees. 	The 	requirements 	will 	undoubtedly 	serve
to weed 	out 	many PSO's 	unable 	to 	keep 	pace with 	the 	revamping
of 	the 	security force. 	Only PSO's 	now face 	the 	loss 	of 	their
jobs 	on a yearly basis 	for 	physical 	fitness 	reasons.
The 	shift 	to 	a more 	professional 	security force 	is 	also
evidenced 	by 	numerous 	other 	changes 	which 	have 	occurred 	since
the 	time 	of 	the 	initial 	unit 	determination. 	The 	type 	and
frequency of 	searches 	conducted 	by PSO's. 	the 	increasing
sophistication of 	the 	technical 	sweep 	teams, 	the 	shift 	from
yellow caution 	lights 	to 	police 	package 	red 	lights 	on 	patrol
cars, 	and 	the 	increase 	in sophistication of 	the department's
communication 	system are 	all 	indications 	of 	the 	change 	in 	the
Laboratory's 	approach to 	security. 	Many of 	the 	changes may
seem 	irrelevant when viewed 	in 	isolation. 	For 	example, 	a
change 	in the 	color 	of 	the 	rain gear 	from yellow to 	black, 	or
to 	a 	darker 	colored 	sleeve 	patch, 	would 	be 	singularly
insignificant were 	it 	not 	for 	the underlying reasons 	for 	the
change. 	Black 	is 	harder 	for 	intruders 	to spot, 	providing PSO's
another 	small 	but 	important 	advantage 	during a 	tactical
assault. 	Viewed 	in that 	light, 	the change 	is 	further 	evidence
of 	the 	Laboratory's 	shift 	towards 	a 	paramilitary 	security 	force.
Some 	other 	changes 	are 	not 	at 	all 	subtle. 	The addition of
fully equipped 	SERT teams, 	trained 	hostage 	negotiators,
participation 	in force-on-force 	exercises, 	and 	canine units 	to
35

track intruders and ferret out 	explosives, 	for example, 	are a
great 	deal 	more 	than attempts 	to 	keep 	current with technology.
They mark 	a 	departure 	from 	the 	days 	when PSO's 	were 	"relatively
unskilled 	employees 	performing 	for 	the 	most 	part 	routine
physical 	tasks."
It 	is 	true that many of 	the PSO's 	duties 	have 	remained
unchanged 	and are very routine. 	Checking 	badges, 	document
destruction, 	escort duties, 	traffic functions, 	and some foot
and motor 	patrol 	duties, 	for 	example, 	are 	relatively unchanged,
routine 	in nature 	and make 	up 	the 	bulk 	of 	the 	average workday.
But 	that 	is 	no 	doubt 	primarily due 	to 	the 	fortunate 	fact 	that
terrorist 	attacks, 	demonstrations 	and 	other 	similar 	emergency
situations 	are 	not 	everyday occurrences at 	the 	Laboratory.
In conclusion, 	it 	is 	clear 	that 	the 	circumstances 	existing
at 	the 	time 	of 	the 	initial 	unit 	determination proceeding 	do 	not
currently 	exist. 	The 	significant 	changes which have 	occurred
render 	the 	Board's 	earlier 	decision 	inapplicable 	to 	PSO's 	today.
APPROPRIATE 	UNIT
Having 	found 	that 	the 	earlier 	unit 	determination 	decision
is 	inapplicable, 	it 	is 	then necessary to determine 	the
appropriate 	unit 	placement 	for 	PSO's 	under 	circumstances 	as
they 	currently 	exist.
The 	petitioner 	has 	argued 	that 	a 	unit 	of 	PSO's 	should 	be
severed 	from the 	service 	unit 	pursuant 	to 	the 	criteria 	spelled
out 	in Mallinckrodt 	Chemical Works. 	Uranium Division 	(1966)
36

162 NLRB 	387 	[64 	LRRM 1011]. 	That decision dealt with
requirements 	for 	carving 	out 	or 	severing 	craft units 	and
functionally distinct 	departmental 	units 	with 	a 	tradition 	of
separate 	representation 	similar 	to 	craft 	groups. 	The 	criteria
used 	in Mallinckrodt, however, 	need 	not 	be applied 	here.
Although a 	comprehensive 	service unit was 	found 	to 	be
appropriate 	by the Board, 	no 	employee 	organization was 	ever
certified 	as 	exclusive 	representative. 	While 	there 	is 	no 	PERB
precedent 	on 	this 	issue 	the 	unit 	as 	an 	ongoing 	entity 	is
questionable at 	this 	point. 	Furthermore, 	since the Board's
initial 	unit 	determination decision 	is 	not 	found 	to 	have
continuing applicability, 	it 	is more 	appropriate to 	look 	to 	the
statutory unit 	criteria 	when 	determining 	the 	appropriateness 	of
the 	petitioner's 	request 	for 	recognition. 	Section 	3579 	spells
out 	the unit 	criteria 	in pertinent 	parts 	as 	follows:
(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.
37

(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 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.
(c) 	There 	shall 	be 	a 	presumption that all
employees within an 	occupational 	group or
groups 	shall 	be 	included within a 	single
representation unit. 	However, 	the
presumption shall 	be 	rebutted 	if 	there 	is 	a
preponderance 	of 	evidence 	that 	a 	single
representation unit 	is 	inconsistent with 	the
criteria 	set forth in subdivision 	(a) 	or 	the
purposes 	of 	this 	chapter.
38

(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.
In determining the community of 	interest of PSO's. 	it 	is
necessary 	to 	look 	at 	the 	extent 	PSO's 	perform 	functionally
related 	services 	toward 	a 	common goal. 	Regardless 	of 	the
specific work assignment. 	PSO's 	all 	have a 	common goal: 	the
security 	of 	the 	Laboratory 	and 	the 	protection 	of 	special
nuclear materials. 	Although all 	employees 	at 	the 	Laboratory
should be security-conscious, 	it 	is 	the PSO's 	as a 	security
force who 	ensure 	that 	adequate 	protections 	and 	safeguards 	are
in effect at all 	times. 	This 	is 	a 	responsibility and 	goal 	not
shared 	by 	other 	service 	unit 	employees.
Toward 	that 	common goal. 	PSO's 	all 	receive 	extensive
training not 	given to any other 	Laboratory personnel. 	As 	a
result 	of 	that 	training, 	PSO's 	possess 	skills 	completely
foreign 	to 	other 	Laboratory 	employees. 	Other 	employees 	are 	not
trained 	in tactical maneuvers 	or 	deadly weapons, 	self 	defense,
search 	and 	seizure 	and 	arrest 	techniques, 	among 	many 	other
skills 	unique 	to 	the 	security 	force. 	There may have 	been 	times
in 	the 	history of 	the 	Laboratory when PSO's 	possessed 	the 	same
skill 	levels 	as 	custodians 	or 	gardeners, 	for 	instance, 	but 	that
was 	before 	the 	threat 	of 	terrorism 	led 	to 	increased 	security
measures.
39

The working 	conditions 	of 	PSO's 	are 	also 	different 	than all
other 	Laboratory personnel. 	No 	other 	employees 	are 	subject 	to
physical 	fitness 	standards 	which 	could 	result 	in 	the 	loss 	of
their 	jobs 	on an annual 	basis. 	That 	unique factor 	alone 	goes 	a
long way 	in 	establishing 	a 	community 	of 	interest 	among 	PSO's
separate 	from other 	Laboratory 	groups. 	PSO's 	are 	the 	only
employees 	receiving 	"on call" 	pay. 	Overtime 	is 	allocated 	by a
system unique 	to 	PSO's. 	The 	shift 	schedules 	of 	PSO's 	are 	also
different 	than other 	employees, 	allowing PSO's 	to 	report 	to 	the
squad 	room for 	their 	roll 	call 	meeting 	and 	still 	be 	in place 	at
their 	work 	assignment when 	other 	employees 	change 	shifts.
PSO's 	are 	the 	only 	Laboratory 	personnel 	given 	psychological
examinations 	and 	a 	behavioral 	events 	selection 	interview before
their 	initial 	employment.
The 	overlapping 	job 	duties 	between 	PSO's 	and 	other
Laboratory 	employees 	are 	minimal 	and 	generally 	related 	to 	the
less 	sophisticated 	PSO duties 	such 	as 	document 	destruction 	or
escort duties. 	Although other 	employees, 	such as 	fire 	fighters
or 	health and 	safety technicians, 	may respond 	to 	the 	same
alarms 	as 	PSO's. 	or may patrol 	facilities 	against 	exposure 	to
hazardous materials, 	the 	record 	does 	not 	indicate 	that 	their
duties, 	once they are at 	the 	site of 	the hazardous materials 	or
the 	alarm, 	overlap with the duties 	of 	PSO's.
No 	other 	employees 	in question act 	as 	a 	security force 	or
carry deadly weapons 	or 	search fellow employees, 	enforce
40

traffic 	laws, 	control access 	to 	the Laboratory, 	patrol 	the
facilities 	inspecting buildings 	for 	security problems, 	or
generally 	police 	the 	Laboratory 	premises.
There 	has 	also 	been 	relatively 	little 	interchange 	of
employees 	between 	the 	protective 	service 	division and 	other
groups 	of 	employees. 	Some 	of 	the 	transferring 	that 	has 	taken
place was 	motivated 	by a 	failure 	to 	pass 	the DOE 	fitness
standards. 	If 	other 	Laboratory employees 	seek to 	become PSO's.
they go 	through a 	process 	similar 	to 	outside applicants.
There 	is 	little 	common 	supervision 	between PSO's 	and 	other
Laboratory groups. 	Among 	other 	employees 	placed 	in 	the 	service
unit, 	there 	is 	no 	common supervision until 	the 	level 	of 	the
Laboratory associate 	director. 	There 	are 	emergency 	situations
such as 	fires, 	radiation spills 	or 	criticality alarms, 	etc.
when PSO's 	are under 	the 	direction 	of 	an 	incident 	commander who
would 	be 	the 	senior 	fire department 	personnel. 	However, 	that
chain 	of 	command would 	apply 	to 	all 	Laboratory personnel 	and
does 	not 	indicate 	a 	community 	of 	interest with other 	employees
based 	upon 	common 	supervision.
Because 	there 	has 	never 	been 	an 	exclusive 	representative
for PSO's. 	there 	is 	little history of 	representation with the
Laboratory. 	The 	petitioner 	did 	enter 	evidence 	of 	meetings with
the 	Laboratory over 	a 	limited 	number 	of 	grievances 	and 	a 	few
issues 	such as DOE fitness requirements. 	That, 	however, 	is not
significant 	enough 	to 	support 	an argument 	for 	a 	separate unit
41

of 	PSO's. 	By the same token, 	since there 	is no significant
bargaining history, 	finding that 	a unit 	of 	PSO's 	is 	appropriate
will 	have 	no 	disruptive 	impact 	on 	existing 	bargaining
relationships.
Both 	parties 	point 	to 	bargaining units 	outside 	the
Laboratory 	in support 	of 	their 	positions. 	The 	employer 	points
to 	the 	PSO's 	at 	Lawrence 	Berkeley Laboratory and 	argues 	that
including PSO's 	in a 	service unit was 	successful 	at 	Lawrence
Berkeley 	Laboratory and 	is 	therefore 	appropriate 	at 	LLNL. 	This
argument 	is unpersuasive for 	two 	reasons. 	First. 	PSO's at
Berkeley 	perform 	in a 	different 	manner 	than those 	at 	LLNL.
PSO's 	at 	Berkeley work 	closely with 	the 	U.C. 	Berkeley 	police
department who 	perform many 	of 	the 	functions 	of 	Livermore
Laboratory PSO's. 	The 	training 	of 	Berkeley PSO's 	is 	not 	as
extensive 	as 	at 	LLNL. 	Arrests 	are made 	by 	the University
police 	officers, 	and 	the 	security at 	LBL 	facilities 	is 	nowhere
near 	the 	level 	required 	at 	LLNL. 	Berkeley PSO's 	are not
subject 	to DOE fitness 	requirements, 	nor 	do 	they have 	emergency
response 	teams 	such as 	SERT or 	hostage 	negotiators. 	Generally
speaking, 	the 	situations 	at 	LBL and 	LLNL are not 	comparable.
This 	is 	supported 	by 	the 	Board's 	earlier 	finding 	in Unit
Determination 	for 	Skilled 	Crafts 	Employees 	of 	the 	University of
California 	(1982) 	PERB Decision No. 	242-H. 	as follows:
While LBL 	is 	similar 	to 	LLNL 	in that 	it 	gets
federal 	funding 	and 	must 	seek DOE 	approval
of personnel 	policy, 	these 	factors alone do
not mandate 	a 	separate unit 	for 	the
42

Laboratory. 	LBL 	is 	distinguishable 	from
LLNL 	in 	that 	salary 	ranges 	at 	the 	latter 	are
set 	by a 	local 	job market 	survey which must
be approved 	by the DOE, 	whereas 	LBL ranges
are 	set 	by 	the 	University and 	do 	not 	require
federal approval. 	Moreover. 	LBL is not
involved 	in 	nuclear 	weapons 	research 	and 	its
employees 	are 	not 	required 	to 	have 	security
clearance.
The 	second 	reason 	the 	history at 	LBL 	is 	not 	helpful 	in
determining the unit 	at 	LLNL 	is 	that, 	at 	the time 	of 	the
hearing, 	the 	collective 	bargaining 	agreement 	concerning 	the 	LBL
PSO's was 	less 	than a year 	old. 	Such a 	limited 	experience
should 	not 	play a 	role 	in 	the 	Livermore 	determination.
Equally 	inapplicable 	are 	the 	experiences 	at 	other 	DOE
facilities 	cited 	by petitioner. 	Guards 	at 	all 	other 	DOE
facilities 	are 	provided 	by private 	security companies 	on a
subcontracting 	basis. 	They are 	represented 	by employee
organizations 	in units 	limited 	to 	guards. 	Those 	other
facilities 	fall 	within 	the 	jurisdiction 	of 	the NLRB 	and 	not
HEERA. 	As 	such, 	separate units 	are mandated by section 9(b)(3)
of 	the 	Labor Management 	Relations 	Act 	(LMRA)12	12 and 	provide
little value 	to 	the 	case 	at 	hand.
12 Section 9(b)(3) 	of 	the 	LMRA reads 	in pertinent 	parts 	as
follows:
Provided, 	That the Board shall 	. 	. 	.
(3) 	decide that 	any unit 	is 	appropriate 	for
such purposes 	if 	it 	includes, 	together with
other 	employees, 	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
43

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. . . .
Evidence 	regarding 	the 	extent 	to which 	employees 	belong 	to
the 	same 	employee 	organization 	is 	also 	of 	little value. 	The
petitioner 	cites 	the 	fact 	that 	it was 	the 	only organization on
the 	ballot 	during 	the 	first 	election, 	and 	that 	no 	other
employee 	organization has 	intervened 	in 	the 	case 	at 	hand.
However, 	petitioner 	did 	lose 	the 	first 	election to 	"no
representation." 	Furthermore, 	other 	employee 	organizations
will 	have 	an opportunity 	to 	intervene 	on 	any new election.13	13
Petitioner 	also 	cites 	the 	fact 	that 	14 	PSO's 	testified 	in
support of 	the separate unit. 	However, 	that 	is not a
significant 	number when 	compared 	to 	the 	unit 	size 	of
approximately 200. 	Thus, 	the 	history of 	representation and 	the
extent 	of 	membership 	of 	the 	petitioner 	are 	not 	material 	factors
in this unit decision.
The 	effect 	the 	unit will 	have 	on 	the meet-and-confer
relationship must 	also 	be 	taken 	into 	consideration. 	There 	is
13 PERB Regulation 	51310 	states 	as 	follows:
Within 	15 workdays 	following 	issuance 	of 	a
notice 	of 	intent 	to 	conduct 	election 	in the
appropriate unit, 	any employee 	organization,
whether 	or 	not 	a 	party to 	the unit 	hearing,
may 	file 	an 	intervention 	to 	appear 	on
ballot. . . .
44

no 	evidence 	indicating 	the 	employer would 	have 	a 	problem
providing 	employee 	representatives 	with 	authority 	and
availability 	sufficient 	to 	deal 	effectively with 	an 	exclusive
representative 	for 	a unit 	of 	PSO's. 	There was 	no 	such problem
during 	earlier 	discussions 	between 	the 	employer 	and 	the
petitioner 	regarding DOE 	fitness 	standards. 	The 	employer 	has
taken the position that 	it would 	be willing to and 	has. 	in
fact, 	met with any employee 	organization wishing 	to 	raise
issues 	of 	concern to 	PSO's 	in 	the 	past. 	Among employees
covered 	by 	the 	earlier 	service unit 	decision, 	the 	protective
service 	division 	is 	unique 	in that 	it was 	assigned 	a
representative 	from the 	personnel 	department 	to 	be 	of
assistance 	for 	employment-related 	issues.
The 	numerical 	size 	and work 	location 	of 	PSO's 	also 	suggest
that 	they would 	be 	a workable 	unit. 	Although 	smaller 	than 	the
University's 	systemwide 	bargaining units, 	a unit 	of 	almost
200 	PSO's 	is 	similar 	to 	the 	sizes 	found 	appropriate 	in campus
craft 	units. 	With the 	bulk 	of 	PSO's 	assigned 	to 	the 	Livermore
site, 	and 	only a 	limited 	number 	assigned 	to Site 	300. 	the work
location creates 	no 	special 	problems 	for 	a 	PSO unit.
Communications 	between 	the 	employer 	and 	the unit 	or 	among 	the
unit 	members 	themselves 	would 	be 	relatively simple.
In 	earlier 	decisions.14 the 	Board 	found 	that 	dividing 	an
1 4 See 	for 	example. 	Unit 	Determination 	for 	Skilled 	Crafts
Employees 	of 	the University of California, 	supra.
45

existing 	classification 	among 	two 	units 	was 	not 	a 	problem when
LLNL was 	involved. 	Even 	if 	the University were 	to 	prevail 	in
its 	argument 	that 	PSO's 	belong 	in a 	service unit. 	PSO's would
be divided 	into 	two units, 	one 	at 	LLNL and 	one at 	LBL. 	Thus,
that 	factor 	is 	not 	an important 	one.
Since 	there 	are 	no 	other 	PSO's 	in a 	situation similar 	to
that 	at 	LLNL, 	a 	PSO unit would 	be unique within the University
system. 	Because 	the 	facts 	in 	this 	case 	are unique,
establishment 	of 	a 	PSO unit will 	not 	lead 	to 	any 	proliferation
of 	other 	PSO units. 	Only one 	additional 	unit 	is 	being 	created
which 	should 	not 	create 	a 	burden 	for 	the 	University. 	The
University 	has 	not 	demonstrated 	that 	its 	creation would 	impair
the 	efficient 	operations 	of 	the 	University 	or 	the 	Laboratory,
nor will 	it 	interfere with 	the 	University's 	ability 	to 	serve
students 	and 	the 	public.
The 	petitioner 	argues 	that 	since 	PSO's 	are 	the 	equivalent
of 	police officers at LLNL, 	the rationale underlying
section 3579(f) 	should apply. 	However, 	in spite of 	the fact
that PSO's 	act 	like peace 	officers, 	look 	like peace 	officers,
used 	to 	be peace 	officers, 	still 	perform many of 	the 	same
functions 	as 	peace 	officers, 	and 	in many respects 	are 	treated
like 	peace 	officers 	by the 	Laboratory, 	they are 	not 	peace
officers 	pursuant 	to 	section 830.2 	of 	the Penal 	Code. 	Had 	the
Legislature wanted 	security 	guards 	to 	be 	included 	within
section 3579(f). 	it 	could easily have done so. 	Yet 	it 	chose to
46
•

limit 	the 	section 	to 	peace 	officers 	instead 	of 	those 	performing
peace officer 	functions. 	Thus, 	the underlying rationale 	of
section 	3579(f) 	is 	not 	a 	factor 	taken 	into 	consideration 	in
creating 	this 	PSO unit.
The 	petitioner 	also 	argues 	extensively 	that 	the 	Board 	erred
in 	its 	earlier unit 	decision when 	it 	decided 	not 	to 	apply 	the
PERB 	precedent 	stated 	in 	Sacramento 	City Unified 	School
District, 	supra. 	The Board 	held 	that 	its 	policy of 	favoring
separate 	units 	for 	security 	guards was 	for 	the 	benefit 	of 	the
employer, 	and 	that 	if 	the 	employer 	did 	not want 	a 	separate
unit, 	the policy would 	not 	be 	applied. 	This 	holding 	remains
precedential 	and 	binding, 	unlike 	the 	factual 	findings 	of 	the
Board which, 	due 	to 	changes 	in 	circumstances 	are no 	longer
applicable. 	Therefore, 	the decision to 	establish a PSO unit 	is
based 	entirely upon 	the 	statutory unit 	criteria 	and 	does 	not
rely 	for 	support 	upon 	the 	policy 	favoring 	guard 	units 	as
spelled 	out 	in 	Sacramento 	City.
On the 	afternoon of 	the 	last 	day of 	the hearing, 	the
University announced, 	as 	an alternative 	position, 	that 	if PSO's
were 	found 	not 	to 	be 	appropriately 	included within 	the 	service
unit, 	then they 	belonged within 	the 	Laboratory 	technical 	unit.
The 	issue 	of 	including PSO's 	in 	the 	technical 	unit was 	never
raised at 	the 	outset 	of 	the 	hearing as 	an 	issue 	to 	be
litigated. 	Furthermore, 	other 	than restating 	its position in a
footnote 	in 	its 	opening 	brief 	and 	in a 	single 	paragraph 	in 	its
47

reply brief, 	the 	inclusion of 	PSO's 	in 	the 	technical 	unit was
not 	briefed. 	This 	issue 	has 	not 	been 	fully 	litigated. 	Thus,
the University has 	failed 	to 	demonstrate 	that 	it 	is 	more
appropriate 	for PSO's 	to 	be 	in a 	technical unit 	or 	that 	it 	is
inappropriate 	for 	PSO's 	to 	be 	in a 	separate unit. 	A unit 	of
PSO's 	is 	appropriate at 	LLNL.
PROPOSED 	ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of 	law
and 	the 	entire record 	in this 	case, 	a unit 	of 	Protective
Service 	Officers 	at 	Lawrence 	Livermore 	National 	Laboratory
requested 	by petitioner 	is 	found 	to 	be 	appropriate, 	and 	an
election 	shall 	be 	held 	by 	the 	San Francisco 	Regional 	Director
pursuant 	to 	the Board's 	rules 	and 	regulations.
Pursuant 	to California Administrative Code, 	title 	8.
part 	III, 	section 32305. 	this 	Proposed Decision and Order 	shall
become final 	on October 	2. 	1985. 	unless a party files 	a 	timely
statement of exceptions. 	In accordance with the rules, 	the
statement 	of 	exceptions 	should 	identify 	by page 	citation 	or
exhibit 	number 	the 	portions 	of 	the 	record 	relied upon 	for 	such
exceptions. 	See California Administrative Code 	title 	8.
part 	III. 	section 32300. 	Such statement of 	exceptions 	and
supporting 	brief 	must 	be 	actually 	received 	by 	the 	Public
Employment 	Relations 	Board 	at 	its 	headquarters 	office 	in
Sacramento 	before 	the close 	of 	business 	(5:00 p.m.) 	on
October 	2, 	1985. 	or 	sent 	by telegraph or 	certified United
48

States mail, 	postmarked 	not 	later 	than 	the 	last 	day 	for 	filing
in order 	to 	be 	timely filed. 	See 	California Administrative
Code, 	title 8, part 	III. 	section 32135. 	Any statement 	of
exceptions 	and 	supporting 	brief 	must 	be 	served 	concurrently
with 	its 	filing upon each party to 	this 	proceeding. 	Proof 	of
service 	shall 	be 	filed with 	the 	Board 	itself. 	See 	California
Administrative Code, 	title 8, 	part 	III, 	sections 32300 and
32305.
Dated: 	September 12. 	1985 - ~-----------
JAMES W. TAMM
Administrative 	Law Judge
49