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05/28/97 FRATERNAL ORDER POLICE v. PENNSYLVANIA

May 28, 1997

FRATERNAL ORDER OF POLICE, CONFERENCE OF PENNSYLVANIA LIQUOR CONTROL BOARD LODGES, PETITIONER
v.
PENNSYLVANIA LABOR RELATIONS BOARD, RESPONDENT



Appealed From No. PERA-U-95-213-E. State Agency Pennsylvania Labor Relations Board.

Before: Honorable Dan Pellegrini, Judge, Honorable Rochelle S. Friedman, Judge, Honorable Samuel L. Rodgers, Senior Judge. Opinion BY Senior Judge Rodgers.

The opinion of the court was delivered by: Rodgers

OPINION BY SENIOR JUDGE RODGERS

FILED: May 28, 1997

The Fraternal Order of Police, Conference of Pennsylvania Liquor Control Board Lodges (FOP) appeals from an order of the Pennsylvania Labor Relations Board (Board) which dismissed FOP's exceptions and made final a hearing examiner's proposed decision and order denying FOP's Petition for Unit Clarification. We reverse.

On April 21, 1995, FOP filed a Petition for Unit Clarification with the Board, seeking to split an existing bargaining unit into two separate units. By letter dated May 1, 1995, the Secretary of the Board dismissed the petition and FOP filed timely exceptions. On July 7, 1995, the Board issued an order remanding the matter to the Secretary for further proceedings. A hearing on the petition was held on November 21, 1995.

The following facts are summarized from the hearing examiner's findings and are not contested. In 1971, FOP was certified as the exclusive representative of a unit of Pennsylvania Liquor Control Board (LCB) employees. The unit consisted of employees classified as Enforcement Officers I and II and Enforcement Officer Trainees. These employees were under the direction and supervision of the LCB, and their duties included both enforcement and licensing functions.

As a result of legislation passed in 1987, the function of enforcing liquor laws was transferred to the Pennsylvania State Police. The licensing functions remained with the LCB. The LCB employees were given the choice to remain employed with the LCB as licensing analysts or to become employed with the State Police as liquor law enforcement officers. *fn1

Approximately 148 enforcement officers are employed with the State Police. They receive extensive training in the crimes code, the use of deadly force and firearms, self-defense and first-aid at the State Police Academy. The enforcement officers are bound by all State Police regulations, including disciplinary regulations. They are also held to the same physical and educational standards as are State Troopers.

The enforcement officers often work undercover, investigating gambling, underage drinking, hours of operation violations and other crimes, including homicides. The enforcement officers conduct raids, make arrests and seize property. They are issued raid gear, including a gun and a bullet-proof vest. These officers work closely with local police, State Troopers, the Internal Revenue Service, the Federal Bureau of Investigation and United States Marshals, and handle prosecutions from arrests through Disposition.

Approximately 46 licensing analysts are employed by the LCB. The job functions of licensing analysts involve regulatory work, including auditing, to ensure compliance with the Liquor Code *fn2 and related laws and regulations. The licensing analysts are not authorized to engage in criminal investigations or prosecutions. They do not have authority to carry firearms or make arrests. They do not participate in searches of licensed establishments to determine if there are any violations of the Liquor Code, nor do they perform any of the other duties performed by enforcement officers. The licensing analysts are not trained by the State Police and are not subject to weight, eyesight or agility requirements. Approximately eighty-five per cent of the licensing analysts work from their homes.

Although the hearing examiner's findings detailed the differences between the job functions and work conditions of the two groups, the hearing examiner concluded that "given the Board's steadfast adherence to the broad-based bargaining unit policy, the FOP's request ... must be denied." (Hearing Examiner's Decision, p. 5.)

On appeal, the Board issued additional and amended findings of fact. The Board found that, under the parties' collective bargaining agreement, both groups have substantially similar benefits and are subject to identical grievance practices after "step 3." The Board also found that the enforcement officers and licensing analysts work the same number of hours each day and are paid under the same Commonwealth pay plan with the same pay ranges. The Board noted that FOP has represented both groups fairly since 1971 and concluded that the issue of bargaining history weighs in favor of maintaining a combined unit.

The Board determined that the differences in job functions cited by FOP are not so significant as to destroy an identifiable community of interest based upon bargaining history, wages, hours and benefits. Accordingly, the Board dismissed FOP's ...


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