Oregon Cases December 16, 2020: Klamath Cnty. v. Teamsters Local 223

Case Description

RULINGS, FINDINGS OF FACT CONCLUSIONS OF LAW, AND ORDER

Adam Collier, Attorney at Law, CDR Labor Law, LLC, Portland, Oregon, represented the Petitioner.

Julie D. Reading, Attorney at Law, Tedesco Law Group, Portland, Oregon, represented the Respondent.

On December 16, 2020, Administrative Law Judge Martin Kehoe issued a recommended order in this matter. The parties had 14 days from the date of service of the order to file objections. OAR 115-010-0090(1). No objections were filed, which means that the Board adopts the attached recommended order as the final order in the matter. OAR 115-010-0090(4).

The Sergeants employed by the County in the Sheriff's Office are excluded from bargaining.

DATED: January 26, 2021.

/s/ _________
Adam L. Rhynard, Chair

/s/ _________
Lisa M. Umscheid, Member

/s/ _________
Jennifer Sung, Member

This Order may be appealed pursuant to ORS 183.482.

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(UNIT CLARIFICATION PETITION)

RECOMMENDED RULINGS, FINDINGS OF FACT, CONCLUSIONS OF LAW, AND PROPOSED ORDER

A hearing was held before Administrative Law Judge (ALJ) Martin Kehoe on June 29, 2020. The record closed on September 10, 2020, upon receipt of the parties' post-hearing briefs.

Adam Collier, Attorney at Law, CDR Labor Law, LLC, Portland, Oregon, represented the Petitioner.

Julie D. Reading, Attorney at Law, Tedesco Law Group, Portland, Oregon, represented the Respondent.

On April 3, 2020, the Petitioner, Klamath County (County), filed a unit clarification petition with the Employment Relations Board (Board). The petition seeks to clarify whether the Sergeants employed by the County in the Klamath County Sheriff's Office are "supervisory employees" under ORS 243.650(23)(a) and, as a result, whether they can be included in the existing bargaining unit currently represented by the Respondent, Teamsters Local 223 (Union). On April 14, 2020, the Union timely filed an objection to the petition, contending that the Sergeants are not "supervisory employees." As set forth below, we conclude that the Sergeants are "supervisory employees," and are therefore excluded from bargaining.

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All rulings by the ALJ were reviewed and are correct.

Background

1. The County is a "public employer" within the meaning of ORS 243.650(20). The sole County department at issue in this case is the Klamath County Sheriff's Office. The Sheriff's Office currently has around 98 employees in total. (Exh. P-3.) The Klamath County Sheriff is an elected position.

2. The Sheriff's Office consists of a number of Divisions, the largest of which are the Patrol Division and the Corrections Division. The Patrol and Corrections Divisions have around the same number of employees, depending on vacancies. Both Divisions operate 24 hours a day, 7 days a week. Corrections Division employees work in the Klamath County Jail, which currently has around 52.5 positions in total.

3. The Sheriff's Office maintains one policy manual for the Patrol Division (Exh. P-15) and another for the Corrections Division (Exh. P-16). All Sheriff's Office employees have access to these policy manuals and are expected to become familiar and comply with them to the extent possible. Nonetheless, certain policies do not accurately reflect the Sheriff's Office's current practice. The Sergeants' job descriptions, though largely accurate, also contain limited inaccuracies.

4. The Union is a "labor organization" within the meaning of ORS 243.650(13). It is also the exclusive representative of a bargaining unit that includes all regular full-time Sergeants employed in the Sheriff's Office. That unit currently includes five Patrol Sergeants, all of whom work in the Patrol Division, as well as three Corrections Sergeants, all of whom work in the Corrections Division. In 2002, the Union entered into an affiliation agreement with the preexisting Klamath County Sergeants Association to represent this unit. (Exh. R-7.)

5. The County and the Union are parties to a collective bargaining agreement (CBA). By its terms, that CBA expired on June 30, 2020. (Exh. P-1.) Because of the filing of the County's unit clarification petition, as of the hearing for this case, the parties had not started bargaining a successor CBA. However, the Union made a "reopener request" before the petition was filed.

6. The Klamath County Peace Officers' Association (KCPOA) is a separate labor organization. It represents the Sheriff's Office's regular full-time and regular part-time Patrol Deputies, Patrol Corporals, Corrections Deputies, Corrections Corporals, Records Clerks, Jail

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Clerks, Transcriptionists, Senior Civil Deputies, Civil Deputies, and Court Security Deputies. Reserve Officers are excluded from the KCPOA unit. (Exh. P-2 at 8-9.) The County and the KCPOA are parties to their own CBA. (Exh. P-2.)

7. Under different contracts, the Sheriff's Office provides police coverage for outside entities including Klamath Community College, the City of Chiloquin, the Forest Service, and the Bureau of Land Management, among others. Each of those contracts requires that the Sheriff's Office provide a specific number of hours of work for each entity. The contract with the City of Chiloquin, for example, entitles it to 40 hours of patrol from the Sheriff's Office every month.

8. The Sheriff's Office uses a traditional chain of command. Sheriff Chris Kaber is in charge of the entire Sheriff's Office. He has been in his current position since January 2017. Lieutenant Randall ("Randy") Swan reports directly to Sheriff Kaber and is in charge of the Patrol Division. Lieutenant Swan has been in his current position since 2017. Lieutenant Brian Bryson also reports directly to Sheriff Kaber and is in charge of the Corrections Division. Lieutenant Bryson has been in his current position since January or February 2017.

9. Either Lieutenant may be called a Division Commander. The Patrol Lieutenant in particular is also called the "Patrol Operations Lieutenant." (Exh. P-5 at 1.) Further, the Patrol Lieutenant and the Sheriff are sometimes collectively called "the administration." The Corrections Lieutenant is also called the "Jail Commander" and the Search and Rescue Coordinator. (Exh. P-16 at 1.) In practice, and in the Sheriff's Office's policy manuals, Sergeants from either Division are commonly referred to as "Supervisors" or "Shift Supervisors."

10. Lieutenant Swan of the Patrol Division directly supervises the five Patrol Sergeants: Darren Frank, Ryan Kaber, Steven Lewis, Shane Mitchell, and Benjamin Scheen. Lieutenant Bryson of the Corrections Division directly supervises the three Corrections Sergeants: Rose Cas, Daniel Justman, and Billy Stripling. (Exh. P-4.) All three of the current Corrections Sergeants were promoted to their current rank at the same time in October 2016.

11. Every Sergeant ordinarily oversees at least 3 to 10 employees during his or her assigned shift. Together, the Patrol Sergeants oversee approximately 30 Patrol Deputies, a Marine Corporal, and others. Lieutenant Swan does not directly supervise any of the Patrol Deputies. In the other Division, the Corrections Sergeants collectively oversee approximately 28 to 30 Corrections Deputies, 4 Corrections Corporals, 2 Corrections Clerks, 4 Cooks, and 2 Medics. In the Sheriff's Office's chain of command, the Corporal rank is higher than the Deputy rank.

12. All Sergeants share certain essential duties and responsibilities, especially with the other Sergeants in their Division. Among other things, all Sergeants assign their subordinates work and then review and correct that work. However, individual Sergeants can also have specific assignments with unique duties and responsibilities and oversee certain programs and groups. Those assignments can change and be rotated over time. Nevertheless, the Sergeants' duties have not changed significantly in the last five years.

13. Every newly-promoted Sergeant and Corporal is required to attend a two-week Department of Public Safety Standards and Training (DPSST) supervisor training. During that

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class, attendees are trained on working together in groups, networking, liability assessment and mitigation, counseling, presenting briefings, and giving presentations. Further, every year, Corrections Sergeants complete additional supervisor training that covers sexual harassment and other topics. (Justman at 4:46 p.m.)

Schedules

14. Sheriff Kaber works Monday through Friday, from 8 a.m. to 4 p.m. (a 5x8 schedule). Lieutenants Swan and Bryson normally work Monday through Thursday, from 7 a.m. to 5 p.m. (4x10 schedules). The Sergeants and their subordinates work a variety of different schedules, as outlined below.

15. In the Patrol Division, both Sergeant Frank (the North County Supervisor) and Sergeant Kaber (the Detective Sergeant) work Monday through Thursday, from 7 a.m. to 5 p.m. (a 4x10 schedule). Sergeant Lewis (the Special Services Supervisor) works Tuesday through Friday, from 7 a.m. to 5 p.m. (a 4x10 schedule). Because of his Klamath Community College responsibilities (which are addressed below), for part of the year, Sergeant Mitchell works Monday through Thursday, from 7 a.m. to 5 p.m. (a 4x10 schedule). For the rest of year, Sergeant Mitchell works Monday through Friday, from 7:00 or 7:30 a.m. to 3:30 or 4:00 p.m. (a 5x8 schedule). Sergeant Scheen (the night shift Patrol Sergeant) works Wednesday through Saturday, from 5 p.m. to 3 a.m. (a 4x10 schedule).

16. For the majority of the hours in a workweek, a Patrol Sergeant is the highest-ranking officer on duty in the Patrol Division. (Swan at 9:20 a.m.) When a Patrol Sergeant is unavailable, "in most instances the senior qualified senior deputy shall be designated as acting Shift Supervisor." (Exh. P-15 at 315.) Quite often, however, an acting Shift Supervisor will still call his or her Patrol Sergeant while that Sergeant is off duty and ask for direction. Moreover, any Patrol Deputy can always contact his or her shift's Patrol Sergeant while that Patrol Sergeant is off duty.

17. On average, Patrol Sergeants spend about half of their time in the field on patrol and the other half in their offices reviewing or writing reports. That said, the exact amount of time spent in or out of the office varies from one Patrol Sergeant to the next depending on each Patrol Sergeant's specific assignments. Sergeant Lewis, the Special Services Supervisor, spends more time on paperwork in the office than the other Patrol Sergeants. Meanwhile, Sergeant Sheen of the night shift is out on the street more than the others.

18. Lieutenant Swan typically spends "very very little" time out in the field doing typical Patrol Division work. (Swan at 9:46 a.m.) However, he does try to respond to major incidents. Lieutenant Swan heavily relies on his Patrol Sergeants to let him know what is going on with their Patrol Deputies, but he also does his own research and listens to the radios. Additionally, Lieutenant Swan tries to meet with all of the Patrol Sergeants at once several times a year.

19. Each of the three Corrections Sergeants works a 4x10 schedule and is assigned one of the jail's three shifts: day shift, swing shift, or graveyard shift ( i . e ., "mid shift"). Sergeant Stripling oversees the day shift and works Tuesday through Friday, from 6 a.m. to 4 p.m. Sergeant

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Justman oversees the swing shift and works Sunday through Thursday, from 12 p.m. to 10 p.m. Finally, Sergeant Cas oversees the graveyard shift and works Wednesday through Saturday, from 10 p.m. to 8 a.m. Corrections Sergeants' shifts can change up to four times a year.

20. For the Corrections Sergeants' subordinates, the day shift runs from 6 a.m. to 2 p.m., the swing shift goes from 2 p.m. to 10 p.m., and the graveyard shift goes from 10 p.m. to 6 a.m. Three of the four Corrections Corporals bid for and then are assigned to one of the jail's three shifts. Lieutenant Bryson assigned the remaining Corrections Corporal to the jail's Transport Division, which is overseen by the day shift's Corrections Sergeant.

21. When Lieutenant Bryson is on vacation, a Corrections Sergeant may be designated acting Jail Commander. However, the Corrections Sergeants can always call Lieutenant Bryson while he is off work. When no Corrections Lieutenant or Corrections Sergeant is working, the highest-ranking officer in the jail is either a Corrections Corporal or a senior Corrections Deputy.

Sergeant Frank (Patrol Division)

22. Sergeant Frank is the North County Supervisor, and accordingly oversees the northern part of the County. He also acts as the Assistant Search and Rescue Coordinator for that district. Normally, Sergeant Frank has a single Patrol Deputy specifically assigned to his district. He also oversees other day shift Patrol Deputies.

Sergeant Kaber (Patrol Division)

23. Sergeant Kaber is the Detective Sergeant, and accordingly leads the Patrol Division's Detectives Unit. The Detectives Unit handles major crimes, other crimes that involve more intense investigation, and some background investigations. As Detective Sergeant, Sergeant Kaber regularly oversees three Patrol Deputies designated as Detectives and one unsworn part-time Evidence Technician. He also temporarily oversees other Patrol Deputies (who are not Detectives) when another Patrol Sergeant is absent or unavailable. Sergeant Kaber has been a Patrol Sergeant since December 2017 and the Detective Sergeant since January 1, 2020.

24. Sergeant Kaber regularly gives out assignments and cases to his three Detectives and himself. When doing so, Sergeant Kaber tries to balance the Detectives' workloads and considers each Detective's experience, skill level, and expertise. Often, he asks Detectives if they can take a case. Some of the Detectives' cases come from the Patrol Division, while others come from outside agencies or the Detectives themselves. Sergeant Kaber discusses the status of his Detectives' cases with Lieutenant Swan and Sheriff Kaber multiple times a week.

25. Sergeant Kaber reviews his Detectives' reports like other Sergeants do (as explained below), but he tries not to guide his Detectives' investigations. Nevertheless, his Detectives do come to him with questions and concerns about their cases, and he gives them answers or instruction. The Detectives most often ask him whether something is consistent with policy.

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26. Patrol Deputies designated as Detectives get paid more than regular Patrol Deputies do. Patrol Deputies who want to be a Detective submit a letter of interest when a Detective position is available. Once those letters are collected, the Detective Sergeant and Lieutenant Swan talk about the applicants. Lieutenant Swan considers the Detective Sergeant's input and the existing Detectives' input. On at least one occasion, a Patrol Sergeant has recommended to Lieutenant Swan that a specific applicant not be selected as a Detective. However, Lieutenant Swan has never rejected a candidate for Detective solely because of a Patrol Sergeant's objection.

27. Sergeant Kaber is also part of the Major Crime Team. The Major Crime Team is a group of representatives from local law enforcement agencies that responds to and attempts to solve certain major crimes that occur in the County. Those crimes include homicides, certain robberies, and rapes. The group includes Detectives from the Sheriff's Office, the Klamath Falls Police Department, and the Oregon State Police, as well as representatives from the Klamath County District Attorney's Office.

28. Whenever a major crime or incident occurs in the County, the Klamath County District Attorney is contacted, and he or she decides whether to activate the Major Crime Team. If the group is activated, the Detectives either report to the scene or the Major Crime Team's current command post in the Klamath Falls Police Department's station.

29. Each time the Major Crime Team is activated, the administration of whatever agency is up next on the rotation takes over the case. The lead agency commands the crime scene, and that agency's administration is in charge of the overall investigation of the crime. For the Sheriff's Office, Lieutenant Swan and Sheriff Kaber delegate some of their authority in this area to Sergeant Kaber, but ultimate responsibility remains with Sheriff Kaber.

Sergeant Lewis (Patrol Division)

30. Sergeant Lewis has been a Patrol Sergeant since around 2005. He is currently the Special Services Supervisor. In that role, Sergeant Lewis oversees the Special Services Units, which currently include the Animal Control Unit, the Forest Unit, and the Marine Unit. As a result, Sergeant Lewis regularly oversees one Animal Control Deputy, three unsworn Animal Control Clerks, two Forest Deputies (one full time and one part time), one Marine Corporal (full time), and one Marine Deputy (full time). He also oversees regular Patrol Deputies on Fridays during his shift.

31. Sergeant Lewis does not assign his regular Patrol Deputies work "very often." (Lewis at 3:06 p.m.) However, he does make sure that the Sheriff's Office's Marine Unit, Bureau of Land Management, and Forest Service contracts are fulfilled by making sure that the required number of hours is actually worked in the right areas. Sergeant Lewis leaves it up to the discretion of the assigned Patrol Deputies to determine where to work on Forest Service lands. Moreover, the Marine Corporal essentially always knows how much time he should spend on each of the 28 bodies of water the Sheriff's Office is responsible for on a given day or week. Some Animal Control and Forest work comes from the Sheriff's Office's 9-1-1 Dispatch Center (which is discussed further below). Some Animal Control work comes directly from the public. Some Forest work comes from the Forest Unit's Patrol Deputies' own encounters with people. Separately,

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Sergeant Lewis also makes sure enough employees are available for large scheduled events such as the "Gambler 500."

32. Patrol Deputies who are interested in filling openings in the Animal Control, Forest, or Marine Units submit a letter of interest. Next, applicants are interviewed by Sergeant Lewis and Lieutenant Swan. After the interviews, Sergeant Lewis can recommend to Lieutenant Swan whether an applicant should be selected, and the two can discuss that recommendation. Lieutenant Swan "values" this type of recommendation. Ultimately, Lieutenant Swan and Sheriff Kaber decide who is selected for one of these groups.

33. Sergeant Lewis is also the Special Response Team (SRT) Commander for the Patrol Division. SRT acts like a "mini SWAT team" and usually has 8 to 12 team members. SRT is also commonly called the "Crisis Response Unit." (Exh. P-15 at 256.) Sometimes, Sergeant Lewis does specialized training for SRT's members. If Sergeant Lewis is unavailable, either Sergeant Scheen or Lieutenant Swan is in charge of SRT.

34. Employees who are interested in joining the Patrol Division's SRT submit a letter of interest. Next, each applicant is "put through the paces" for a day and participates in an interview with an oral board. (Swan at 11:50 a.m.) After that, Sergeant Lewis and the rest of SRT can share a recommendation regarding whether the applicant should be hired. Eventually, Lieutenant Swan and Sheriff Kaber decide who is chosen together. Employees are not paid extra for being on SRT unless it results in overtime or compensatory time for training.

35. In addition to the foregoing, Sergeant Kaber is the Patrol Division's Field Training and Evaluation Program (FTEP) Supervisor. (Swan at 10:36 a.m.) FTEP is a standardized training program for new Patrol Deputies in which every new Patrol Deputy is assigned a specific Field Training Officer (FTO). Among other things, the FTEP Supervisor makes sure that each FTO's trainee performance evaluations are completed, monitors FTO performance, and develops ongoing training for FTOs. (Exh. P-15 at 298-99.)

36. Patrol Deputies who are designated as an FTO are paid extra for their FTO work. In order to be selected as an FTO, a Patrol Deputy must have three years of experience. FTO candidates are usually recommended for the assignment by a Patrol Sergeant. Once selected, FTOs are expected to go through FTEP training, which takes place outside the County.

Sergeant Mitchell (Patrol Division)

37. Sergeant Mitchell serves as the Sheriff's Office's "Law Enforcement Liaison." (Exh. P-13 at 2.) In that role, Mitchell provides security for schools including Klamath Community College under a contract and oversees three Patrol Deputies designated as School Resource Officers, a number of Reserve Officers, and some campus security personnel. Part of Sergeant Mitchell's work is conducted "at a substation located on campus." (Exh. P-13 at 2.) Outside of his Law Enforcement Liaison role, Sergeant Mitchell also oversees the day shift's five regular Patrol Deputies (a duty Sergeant Mitchell shares with Sergeant Frank).

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38. Some of Sergeant Mitchell's Law Enforcement Liaison duties include correcting his School Resource Officers' reports, making sure that their investigations are done properly, and making sure that they work the number of hours required by the Klamath Community College contract.

39. School Resource Officers are paid more than regular Patrol Deputies. A Patrol Deputy who is interested in filling an open School Resource Officer position must submit a letter of interest. Subsequently, Sergeant Mitchell can provide "some input" to Lieutenant Swan regarding which applicant should be selected. (Swan at 9:44 a.m.)

40. Neither a School Resource Officer nor a Detective assignment lasts for a set amount of time. However, a Patrol Deputy typically remains in either of those special, premium pay assignments for three to five years. Theoretically, if a Patrol Deputy was not performing well in either special assignment, a Patrol Sergeant would let Lieutenant Swan know about it. Afterward, Lieutenant Swan or Sheriff Kaber could reassign the underperforming Patrol Deputy. However, to date, Lieutenant Swan has never had a Patrol Sergeant say that that should happen.

41. Patrol Deputies can ask their Patrol Sergeant for permission to attend specific "external trainings." Patrol Sergeants can also attempt to send a Patrol Deputy to the same after noticing a deficiency. When either of those things happens, the Patrol Sergeant determines whether the Patrol Deputy has enough time available to attend the training. If the Patrol Sergeant decides that the Patrol Deputy does have the time, the Patrol Sergeant passes the training request on to Sergeant Mitchell, the Patrol Division's current "Training Sergeant." (Exh. P-15 at 31.)

42. After receiving a request for an external training, Sergeant Mitchell checks to see if there is enough money for the training in the budget. He also determines whether the external training seems necessary. If Sergeant Mitchell grants or denies the external training request, he submits and discusses the request with Lieutenant Swan. Sergeant Mitchell cannot authorize an external training on his own. Before Lieutenant Swan ultimately decides how to handle a particular external training request, Swan considers Sergeant Mitchell's recommendation, and he usually agrees with it. Previously, Lieutenant Swan has denied a training request that Sergeant Mitchell granted. But that result is "pretty uncommon." (Swan at 10:02 a.m.)

43. As Training Sergeant, Sergeant Mitchell also assigns Patrol Deputies and other employees to internal training provided by Sheriff's Office employees, and can and does do so without getting Lieutenant Swan's prior approval. The Sheriff's Office provides in-house training on defensive tactics and the range, among other things.

Sergeant Scheen (Patrol Division)

44. Sergeant Scheen oversees the Patrol Division's night shift, and accordingly is also called the Night Supervisor. Currently, around 10 Patrol Deputies are regularly assigned to the night shift. If the night shift's Patrol Deputies are ever unsure of what to do for an incident, they can go to Sergeant Scheen for help.

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Sergeant Justman (Corrections Division)

45. Sergeant Justman, who currently oversees the jail's swing shift, is also the Training Sergeant for the Corrections Division. As a result, Sergeant Justman oversees all of the jail's internal and external training, including its FTEP and DPSST obligations. Among other things, this responsibility involves identifying the jail's training needs, scheduling and sending people to trainings, considering specific training recommendations from other Corrections Sergeants who have identified a deficiency, and considering subordinates' requests for either internal or external training.

46. Corrections Deputies who are interested in being an FTO apply for the assignment. After that, Sergeant Justman and Lieutenant Bryson have a discussion about who is the "best fit." (Bryson at 1:27 p.m.) When deciding who to choose, the two consider an applicant's work performance, whether the applicant has worked at the jail for two years, and whether the applicant is still learning. The two must also consider whether an applicant works on the same shift as a newer Corrections Deputy. The final decision regarding who is hired is made by Lieutenant Bryson, although Lieutenant Bryson generally relies on Sergeant Justman's recommendations for this issue. Once selected, the Corrections Division's FTOs go through the same offsite training as the Patrol Division's FTOs.

47. When Corrections Deputies submit internal or external training requests to Sergeant Justman, he can either grant or deny those requests. Sergeant Justman will deny a request if the jail does not have the right instructor for the requested training, or if he does not think that the training would benefit the jail. If Sergeant Justman approves a training request, he submits it and makes a recommendation to Lieutenant Bryson. Subsequently, Lieutenant Bryson decides whether the jail has enough money in its budget and enough staff on the shift for the training. Lieutenant Bryson typically agrees with Sergeant Justman's recommendations on this issue, but has not always done so. If Lieutenant Bryson approves and signs a request, Sheriff Kaber signs it as well.

48. Sergeant Justman also leads the Corrections Division's SRT along with Corporal Hansen, who serves as SRT's Assistant Team Leader. At some point in the future, this SRT will be used for extracting barricaded or violent inmates from their cells. However, as of the hearing for this case, the group had not had its first group training or been used yet. Eventually, Sergeant Justman will lead the SRT's trainings, and will decide when the group will be used for extracting inmates from cells.

49. Recently, Corrections Division employees who were interested in being on SRT submitted a letter of interest. Afterward, Sergeant Justman, Corporal Hansen, and Lieutenant Bryan went through all of the letters of interest together. It turned out that the exact number of people the group needed had applied, and that none of the applicants had any disqualifications. As a result, all of the applicants were selected and placed on the team. Lieutenant Bryson is ultimately responsible for deciding who is on the Corrections Division's SRT. (Bryson at 2:29 p.m.)

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Assign and Direct

50. The KPCOA CBA provides, in part, "Except in emergencies, or other situations beyond the Sheriff's control, employees shall be scheduled to work a regular shift and each shift shall have regular starting and quitting times (starting and quitting times may vary from day to day) and the hours of work shall be consecutive." (Exh. P-2 at 14.) It also provides that, on or about November 1 of each year, the Sheriff posts shift assignments for the four quarters of the year beginning January 1. And according to the CBA, after that, employees in the KCPOA unit bid for their desired shifts by seniority. (Exh. P-2 at 19-22.)

51. Deputies from both Divisions also bid for their scheduled vacation time twice a year by seniority in accordance with the KCPOA CBA. (Exh. P-2 at 21.) Outside of that, Deputies can also submit additional vacation time requests to their Sergeants, who then can either grant or deny them. After receiving a vacation time request, a Sergeant determines whether the Deputy's shift is sufficiently covered and either grants or denies the request accordingly. A sergeant can make this decision without checking with his or her Lieutenant beforehand. That said, whenever a Patrol Sergeant denies a vacation time request, the Patrol Sergeant informs Lieutenant Swan.

52. Patrol Deputies' schedules in particular are largely established a year in advance. But some changes do occur. (Lewis at 3:13 p.m.) Moreover, the Detectives do not bid for their shifts or vacations like regular Patrol Deputies. Instead, the Detectives' shifts are assigned to them.

53. Patrol Sergeants are always responsible for making sure that their shifts are covered by the proper number of Patrol Deputies. For the Patrol Division, there must always be at least three Patrol Deputies working at any given time. (Swan 10:13 a.m.) However, a Patrol Sergeant can also decide that a particular situation requires additional Patrol Deputies be called in. That could occur if there is a major crime, for example. When a Patrol Sergeant decides to bring in more Patrol Deputies, the Patrol Sergeant will usually notify Lieutenant Swan.

54. Patrol Sergeants can assign overtime and either grant or deny Patrol Deputies' overtime requests. When overtime is needed, Patrol Sergeants can ask for volunteers first. If nobody volunteers to work the overtime, the Patrol Sergeant can order or mandate it. Patrol Sergeants can also choose to reassign a Patrol Deputy who is working under one of the Sheriff Office's various contracts ( e . g ., from a Forest Service assignment).

55. Sometimes, a Patrol Deputy needs to keep working beyond the end of a shift to finish his or her work. When that happens, the Patrol Deputy asks a Patrol Sergeant for advice and approval. Otherwise, if a Patrol Deputy has someone in custody and needs to complete an in-custody report before going home, the Patrol Deputy will usually let his or her Patrol Sergeant know, and the Patrol Sergeant will authorize it. Patrol Deputies are guaranteed overtime pay if they have to go to court under a subpoena. However, when that happens, the Patrol Deputies still fill out overtime slips and submit them to their Patrol Sergeants, who ensure that they are correctly taken care of.

56. Corrections Sergeants can also assign overtime to their subordinates. In the Corrections Division, overtime may occur when someone has to cover for a colleague who is out

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sick or on vacation. When that happens, someone else will either come in early or keep working beyond the end of that person's regular shift. Some of the jail's overtime opportunities are posted on a clipboard in order to find volunteers. However, if nobody volunteers for necessary overtime, a Corrections Sergeant can order a subordinate to work it. Currently, Lieutenant Bryson allows his Corrections Sergeants to let a single person take time off even if it creates overtime. He also allows them to let a second person take time off as long as it does not create overtime.

57. Sergeants in both Divisions can also grant or deny the use of compensatory time without checking with his or her Lieutenant beforehand. The Sergeants handle it much the same way as overtime.

58. Sergeants monitor their subordinates' sick leave usage and attendance and make sure that the sick time is documented.

59. Patrol Deputies' daily work is usually determined by the calls the Patrol Deputies receive from the County's 9-1-1 Dispatch Center, or by the follow-up that is necessary for the cases the Patrol Deputies are already working on. Most Dispatch Center calls are distributed on a rotation. But certain calls, including calls requiring the Animal Control or Forest Units, only go to specific individuals.

60. When the Dispatch Center gives a Patrol Deputy a call for service, the Patrol Deputy is expected to report to the scene. In general, Patrol Sergeants make sure that the Patrol Deputies respond to their calls appropriately and in a timely manner. However, a Patrol Sergeant can also override the Dispatch Center's call and reassign Patrol Deputies as the Patrol Sergeant sees fit.

61. When deciding how to assign or reassign Patrol Deputies, the Patrol Sergeants can generally use their own "independent discretion" and consider a variety of factors and "the day's needs." (Swan at 9:30 a.m.) Among other things, a Patrol Sergeant could consider where all the Patrol Deputies are located at the time, whether certain Patrol Deputies are behind in their reports or other work, whether the Sheriff's Office is satisfying all of its various contracts, whether a particular incident or area requires additional Patrol Deputies, and whether the Patrol Deputies have any medical needs. The Patrol Sergeant might also decide that a new Patrol Deputy should take a certain type of call, and also reassign that Patrol Deputy's FTO to the same call. In addition, a Patrol Sergeant can choose to go to Lieutenant Swan and ask him for advice.

62. Like Patrol Deputies, Patrol Sergeants have their own caseloads and may be called out by the Dispatch Center as part of its normal call rotation. A Patrol Sergeant may also report to a Patrol Deputy's scene. That could happen if a Patrol Deputy requests his or her "backup assistance," if the call is particularly high risk, if something is especially complicated about the situation, if there is a liability issue (as with any major crime), or if there is a barricaded subject. When a Patrol Sergeant arrives at a Patrol Deputy's scene, the Patrol Sergeant may take over command of the scene from the Patrol Deputy. Alternatively, the Patrol Sergeant may just "provide over-watch" at the scene.

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63. Patrol Deputies can also formally request a change in assignment using a letter of intent. Eventually, that letter of intent is forwarded to Lieutenant Swan along with a recommendation from a Patrol Sergeant. (Exh. P-15 at 538.)

64. In the other Division, Corrections Sergeants assign Corrections Deputies to six different areas of the jail known as "posts" on a weekly basis. Those posts include Booking Unit, Master Control, Transport Division, A Pod, B Pod, and C Pod. Each of those posts has a unique set of duties and grouping of prisoners affiliated with it. Sometimes, Corrections Sergeants also work a shift at a post.

65. Corrections Sergeants are responsible for making sure that all of the posts are sufficiently covered every day. In a typical weekly schedule, each Corrections Deputy is assigned to a different post every day of the week. In general, Corrections Sergeants try to rotate everyone through every one of the posts every week to keep their skills fresh. However, Corrections Sergeants also pay special attention to where they assign newer Corrections Deputies. For the Booking Unit, which is uniquely challenging, Corrections Sergeants try to have a seasoned Corrections Deputy work with a newer one, and try to avoid having two newer Corrections Deputies work together. Corrections Sergeants may also have to consider whether someone has already been assigned to be an FTO and is linked with a particular Corrections Deputy.

66. The Transport Division normally includes three Corrections Deputies and a Corporal. If one of those three is on vacation, a Corrections Sergeant can assign a line Corrections Deputy to temporarily fill in. A Corrections Sergeant may also specifically decide who is going to transfer inmates. Either the day shift Correctional Sergeant or the Transport Corporal specifically decides which deputies go outside of the jail facility and cover inmate cleaning crews.

67. Both Division's Sergeants complete annual and quarterly performance reviews for their regularly assigned subordinates. For each performance review, the Sergeant marks a number of boxes to indicate whether the subordinate needs improvement or meets or exceeds standards in different areas. A Sergeant can also include his or her own comments on the subordinate's performance and note any areas of concern. (Exh. R-3.)

68. Once a Sergeant completes an annual performance review, he or she submits it to the appropriate Lieutenant, who then conducts his own review of the review. At that point, the Lieutenant can give feedback and/or guidance to the Sergeant, direct a Sergeant to change a review (including having the Sergeant change a specific performance rating), or simply make a change or add something on his own. Later, the Lieutenant gives the review to Sheriff Kaber, who can also make changes and ultimately either accepts each review or not. Once the Sergeant gets the performance review back from Sheriff Kaber, the Sergeant can have a meeting with the subordinate being evaluated and go over the review. After that meeting, the subordinate can add his or her own remarks to the review.

69. Every Sergeant conducts briefings for oncoming shift personnel in order to communicate changes in policies, procedures, and laws, and to discuss departmental activities and assigned duties. These briefings, which may also be called "roll calls," occur at the beginning of every shift. (Exh. P-15 at 252.) Other topics that may be discussed during briefings include

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significant events from the earlier shift, teletypes that have come in ( e . g ., missing persons, stolen vehicles), problems with reports, officer safety information, and upcoming schedules and training. During a Patrol Division briefing, a Patrol Sergeant may announce who will be working the hours for a particular contract that day.

70. In the Patrol Division, briefings are usually conducted by a Patrol Sergeant or the oncoming shift's senior Patrol Deputy. Occasionally, though, a Patrol Sergeant chooses a particular senior Patrol Deputy to do it for training purposes. In addition, if a Patrol Sergeant is not present for a briefing, Lieutenant Swan may attend and help out.

71. Patrol Sergeants make sure that all of their Patrol Deputies' written reports are turned in on time. Afterward, the Patrol Sergeants review those reports and make sure that they are accurate, complete, correct, and sufficient. If a report is deemed insufficient, the Patrol Sergeant sends it back to the Patrol Deputy, and may ask the Patrol Deputy to make certain changes or corrections (including to make something clearer, for example) or follow up with additional investigation. Once a Patrol Sergeant approves a report, it is passed on to the Klamath County District Attorney's Office or some other entity. If a Patrol Sergeant has a question about a report, he can ask Lieutenant Swan for advice.

72. Corrections Sergeants review all of their subordinates' various written reports for correctness and completeness. If a Corrections Sergeant determines that a report is insufficient, the Corrections Sergeant sends the report back to the Corrections Deputy.

73. If a subordinate from either Division is repeatedly writing deficient reports, the Sergeant may try coaching, counseling, or training. If the problems continue beyond that, the Sergeant can bring the matter to Lieutenant Swan's attention. If a Patrol Sergeant fails to address issues with a Patrol Deputy's report, that Patrol Sergeant could potentially be subject to discipline. (Swan at 11:25 a.m.)

74. Patrol Sergeants are also responsible for continually evaluating their Patrol Deputies' work, identifying Patrol Deputies' deficiencies and training needs, and helping Patrol Deputies improve their performance. When a Patrol Sergeant identifies a training need or a deficiency, the Patrol Sergeant can point out the issue to the Patrol Deputy, try to coach the Patrol Deputy through the issue, or recommend the Patrol Deputy attend a particular training if that coaching does not work.

75. Patrol Sergeants otherwise review their subordinates' use of force or a TASER gun, authorize the use of a "control device," decide whether to terminate or continue a Patrol Deputy's "hot pursuit," and monitor their workplace for discriminatory harassment and take action to avoid it. (Exh. P-15 at 41, 50, 60, 88, and 131.) If a Patrol Sergeant fails to monitor the workplace for discriminatory harassment, that Patrol Sergeant could be "held responsible" for that failure. (Swan at 10:29 a.m.) Separately, Patrol Sergeants also make sure that Patrol Deputies' investigations are conducted properly.

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76. Correctional Sergeants can direct a particular Corrections Deputy to search a jail cell or common area, or to help out another post, an investigator, or an attorney. Additionally, a Corrections Sergeant may take command if there is a fight in the jail.

77. Neither Lieutenant Swan nor Bryson has ever disciplined a Sergeant because of the conduct or work of a Sergeant's subordinate. However, a Sergeant may be held responsible if that Sergeant gave a subordinate bad advice, or failed to take action on something the Sergeant was aware of and knew was unethical or unlawful.

Discipline and Suspend

78. According to the KCPOA CBA, "Disciplinary actions include written reprimand, suspension without pay, demotion, discharge, or any combination thereof, or in lieu thereof with the consent of the employee, loss of vacation, holiday or compensatory time. Discipline shall not include administrative relief from duty with pay." (Exh. P-2 at 35.) In practice, a written reprimand can also be called a letter of reprimand.

79. A Sergeant cannot issue formal discipline ( e . g ., a written reprimand) on his or her own. Before a Sergeant can issue formal discipline, he or she must have the Lieutenant or the Sheriff's approval. In addition, in practice, every instance of formal discipline is ultimately issued at either a Lieutenant or the Sheriff's request. If a Sergeant issued a written reprimand without consulting with the Lieutenant, the Sergeant could be counseled. If that happened multiple times, the Sergeant could be disciplined.

80. In the Patrol Division, most discipline-related issues are decided by Lieutenant Swan. However, Patrol Sergeants can give Lieutenant Swan recommendations and/or share their concerns with him. After that, Lieutenant Swan or Sheriff Kaber decides whether to move forward with discipline. Since Swan became Patrol Lieutenant in 2017, Swan is the only person in the Patrol Division to have issued a written reprimand.

81. In the Corrections Division, a written reprimand is specifically considered the "first level" of discipline, is only issued after a formal Internal Affairs investigation, and almost exclusively emanates from Lieutenant Bryson or Sheriff Kaber. (Bryson at 1:45 p.m.) Moreover, if Lieutenant Bryson was going to allow a written reprimand, he would brief Sheriff Kaber about it. In one instance, some corrective action was taken against one Corrections Sergeant after he improperly issued a written reprimand without getting the Lieutenant's permission when the Lieutenant was absent.

82. Patrol Sergeants cannot suspend a subordinate without the prior approval of either Lieutenant Swan or Sheriff Kaber. However, Patrol Sergeants can send Patrol Deputies home from a shift if Lieutenant Swan is unavailable. That could occur when a Patrol Deputy is having "extreme emotional or physical problems," is sick, or smells of alcohol. (Swan at 10:12 a.m.) If Lieutenant Swan is available, he makes the call for such issues once notified. The Sheriff's Office does not consider sending someone home for being sick or intoxicated to be discipline.

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83. Sergeants can also give their subordinates "verbal counseling" or instruction. Neither of those options is considered discipline by the Sheriff's Office. Instruction may take the form of a written "letter of instruction," which "is intended to address areas of concern and to provide documentation that the issue(s) have been addressed." (Exh. P-25 at 1.) In the Patrol Division, several counselings can eventually lead to formal discipline. In addition, in practice, Patrol Sergeants may check with Lieutenant Swan before issuing a letter of instruction.

84. Patrol Sergeants can receive complaints about their subordinates from citizens and from neighboring agencies such as the Klamath Falls Police Department. Corrections Sergeants can receive complaints about their subordinates from citizens and inmates. After a Sergeant receives such a complaint, or if the Sergeant otherwise believes a subordinate may have violated the law or policy, the Sergeant can initiate an informal investigation to gather facts as needed and preliminarily determine whether there was a violation. A Sergeant may also discuss an issue or a complaint with his or her Lieutenant and make a recommendation to the Lieutenant before starting an informal investigation.

85. After conducting an informal investigation, a Sergeant can ask the Lieutenant whether the Sergeant can initiate and then conduct a formal Internal Affairs investigation. At that point, the Sergeant and the Lieutenant have a discussion about it. After that, the Lieutenant and Sheriff Kaber make the final decision about how to proceed. A Lieutenant or Sheriff Kaber may also simply order a Sergeant to initiate an Internal Affairs investigation.

86. If a Sergeant initiated an Internal Affairs investigation without consulting with the Lieutenant or Sheriff Kaber, the Sergeant could be counseled. If that happened multiple times, the Sergeant could be disciplined. Further, Sergeants may only conduct formal Internal Affairs investigations when their subordinates are being investigated. If the investigation involves a Sergeant, the Lieutenant conducts it.

87. In the Patrol Division, Lieutenant Swan takes his Patrol Sergeants' recommendations regarding whether to have an Internal Affairs investigation "very seriously." (Swan at 11:22 a.m.) In the Corrections Division, Lieutenant Bryson "typically" agrees with the Corrections Sergeants' recommendations regarding whether to have an Internal Affairs investigation. (Bryson at 1:48 p.m.) In practice, Internal Affairs investigations are atypical for either Division, and even less common in the Corrections Division.

88. At the end of a formal Internal Affairs investigation, the Sergeant writes an Internal Affairs report. That report can include a synopsis, a summary of allegations, applicable policies, an outline of the evidence, a subordinate's background and disciplinary history, and findings regarding whether there has been a law or policy violation. Additionally, in some but not all instances, Sergeants may make a recommendation regarding what if any action should be taken in light of the investigation. In other instances, a Lieutenant or the Sheriff specifically directs the Sergeant to include a recommendation. A recommended result could be issuing a letter of instruction, removing a special duty ( e . g ., SRT, FTO), issuing a particular type of discipline, or mandating extra training, for example. Recommended discipline may be based on past practice.

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89. Sergeants submit completed Internal Affairs reports to their Lieutenant. After reviewing an Internal Affairs report, the Lieutenant may return it to the Sergeant and ask for corrections, clarifications, or further investigation. Eventually, the Lieutenant gives his own recommendation to Sheriff Kaber, who makes the final decision about the matter. The Lieutenant's recommendation may or may not be the same as the Sergeant's, and a Lieutenant does not accept every recommendation a Sergeant makes.

Reward

90. Sergeants cannot give their subordinates tangible rewards such as a monetary bonus or raise, a new patrol car, or additional time off. Furthermore, those subordinates do not get any kind of reward based on the ratings they receive in their performance reviews. However, a Sergeant can give positive feedback, including telling a subordinate that he or she did a "good job" or giving him or her "a pat on the back." (Swan 12:11 p.m., Lewis at 2:59 p.m.)

1. This Board has jurisdiction over the parties and the subject matter of this dispute.

2. The sergeants are "supervisory employees" as defined by ORS 243.650(23)(a).

Standards of Decision

Under Oregon's Public Employee Collective Bargaining Act, "[p]ublic employees have the right to form, join and participate in the activities of labor organizations of their own choosing for the purpose of representation and collective bargaining with their public employer on matters concerning employment relations." ORS 243.662. However, under ORS 243.650(19), "supervisory employees" are not "public employees" and therefore cannot be appropriately included in a bargaining unit. Office and Professional Employees International Union , Local #11 v . City of Hillsboro , Case No. RC-4-99 at 6-7, 18 PECBR 269, 274-75 (1999).

To determine supervisory status, the Board assesses whether an employee meets the specific criteria set out in ORS 243.650(23)(a), which defines a "supervisory employee" as:

"any individual having authority in the interest of the employer to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively recommend such action, if in connection therewith, the exercise of the authority is not of a merely routine or clerical nature but requires the use of independent judgment."

The supervisory status issue therefore requires the resolution of three questions, each of which must be answered in the affirmative for an employee to be deemed a supervisory employee: (1) Does the employee have the authority to take action or to effectively recommend action be taken in any one of the 12 listed activities? (2) Does the exercise of that authority require the use of independent judgment? (3) Does the employee hold the authority in the interest of management? City of Portland v . Portland Police Commanding Officers Association , Case No. UC-017-13 at

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22-23, 25 PECBR 996, 1017-18 (2014) (citing Deschutes County Sheriff's Association v . Deschutes County , Case No. UC-62-94 at 12-13, 16 PECBR 328, 339-40 (1996)). Significantly, the enumerated supervisory functions in ORS 243.650(23)(a) are read in the disjunctive, such that an employee is a "supervisory employee" if the employee under just one of the 12 statutory criteria. We also recognize that an employee's title or rank in a law enforcement paramilitary structure is not dispositive of supervisory status under the statute. Keizer Police Association v . City of Keizer , Case No. UC-004-18 at 19, ___ PECBR ___, ___ (2019) (citing City of Portland , UC-17-13 at 22-23, 25 PECBR at 1017-18).

For an employee to "effectively recommend" actions, the employee's position must be given substantial credence more often than not. Oregon AFSCME , Council 75 v . Benton County , Case No. C-210-82 at 14, 7 PECBR 5973, 5986 (1983). Evidence of an effective recommendation can be found by, among other things, a lack of any independent review or investigation of the recommendation by a higher-level supervisor. City of Portland , UC-017-13 at 22-23, 25 PECBR at 1017-18 (citing American Federation of State , County and Municipal Employees , Council 75 v . Lane County Sheriff's Office , Case No. C-281-79 at 11, 5 PECBR 4507, 4517 (1981)).

When determining whether an individual exercises "independent judgment," the Board considers related factors such as whether superiors reinvestigate matters handled by the individual and whether the individual merely follows a recipe provided in a management "cookbook." Department of Administrative Services v . Oregon State Police Officers Association , Case No. UC-35-95 at 15, 16 PECBR 846, 860 (1996) (citing International Association of Firefighters , AFL-CIO , Local No . 314 v . City of Salem , Case No. C-96-83, 7 PECBR 6163 (1983)); Lane County Sheriff's Office , C-281-79 at 11, 5 PECBR at 4517. That said, the exercise of independent judgment does not mean that decisions can never be reviewed, reinvestigated, or changed. Such a possibility is inherent in a chain of command or other multi-level management structure, such as the paramilitary structure of a police department. Instead, the determinative factors in such cases are the circumstances and frequency of such changes. City of Keizer , UC-004-18 at 23 n 17, ___ PECBR at ___ (citing Oregon State Police Officers' Association v . State of Oregon , Department of State Police , Case No. UC-7-07 at 32 n 10, 22 PECBR 717, 749 n 10 (2008)).

As this is a representation case, no party bears a burden of proof. OAR 115-010-0070(5)(a). Nevertheless, because a "supervisory employee" is a statutory exclusion from the otherwise broadly defined term "public employee," there must be sufficient evidence establishing that the statutory exclusion applies before we will conclude that an otherwise "public employee" is a "supervisory employee." Mere inferences and conclusory statements regarding supervisory authority are insufficient to render an employee a statutory supervisor. Accordingly, in the absence of detailed, specific evidence establishing that a putative supervisor has authority under the statutory indicia, we will conclude that the employee is a "public employee" covered by the PECBA and not a "supervisory employee" under ORS 243.650(23). City of Portland , UC-017-13 at 23, 25 PECBR at 1018.

In this case, the County argues that all of the sergeants are "supervisory employees" as defined by ORS 243.650(23)(a) and therefore cannot be appropriately included in a bargaining unit. In its post-hearing brief, the County centrally argues that its Sergeants suspend, assign, reward, discipline, and direct their subordinates. Further, at the outset of the hearing, the County

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stipulated that the Sergeants do not have the authority to hire, transfer, lay off, recall, promote, discharge, or adjust grievances. The Union argues that the Sergeants do not exercise any supervisory authority, and that the petition should be dismissed.

Discussion

Assign

The term "assign" can refer to the act of designating an employee to a place (such as a location, department, or wing), appointing an employee to a time (such as a shift or overtime period), or giving significant overall duties ( i . e ., tasks) to an employee. However, choosing the order in which the employee will perform discrete tasks within those assignments is not indicative of exercising the authority to "assign." City of Portland , UC-017-13 at 23-26, 25 PECBR at 1018-1021 (citing Oakwood Healthcare , Inc ., 348 NLRB 686, 688-89 (2006)). For the reasons discussed below, we conclude that the Sergeants are "supervisory employees" as defined in ORS 243.650(23)(a) because they assign subordinates work, use independent judgment in doing so, and hold that authority in the interest of management.

In this case, Sergeants never assign subordinates to a particular Division. Moreover, Sergeants do not appear to independently assign their subordinates to a particular shift. Instead, subordinates largely bid for their shifts by seniority. Detectives' shifts are assigned, but it is ultimately unclear who makes that assignment. A Sergeant can grant vacation time requests without a Lieutenant's involvement. However, a Sergeant's decision regarding whether to award vacation time is also generally a matter of bidding by seniority as well as considering a Division's preset minimum manning requirements. Otherwise, Sergeants cannot independently assign their subordinates to specialty positions such as Detective, School Resource Officer, or FTO. They also cannot independently assign them to special groups such as SRT or the Special Services Units. As detailed above, those kinds of assignments require the input and approval of a Lieutenant and/or Sheriff Kaber. Although Training Sergeants play a considerable role in determining whether requests for external trainings are approved, the Lieutenants are always heavily involved with that.

On the other hand, Patrol Sergeants regularly "assign and reassign" Patrol Deputies to calls, scenes, and different geographical locations within the County. See City of Portland , UC-017-13 at 26, 25 PECBR at 1021. As the Union states in its post-hearing brief (at page 3), "in some cases, a Patrol Sergeant may be able to dispatch a Patrol Deputy to a different call if warranted." Additionally, Corrections Sergeants regularly assign subordinates to one of the jail's six posts every day, and can also assign specific work and tasks beyond that. Those kinds of assignments go beyond simply choosing the order discrete tasks are performed, and are not of a merely routine or clerical nature. In short, they demonstrate the use of "independent judgment."

Importantly, when deciding how to assign or reassign Patrol Deputies, Patrol Sergeants can consider the day's needs, where all of the Patrol Deputies are at the time, whether certain Patrol Deputies are behind in their reports or other work, whether the Sheriff's Office is satisfying all of its contracts, whether the Patrol Deputies have any medical needs, whether a new Patrol Deputy needs experience with a particular type of call, and whether a Patrol Deputy is an FTO. Further, after considering an incident, a Patrol Sergeant can decide to bring in more Patrol Deputies, even

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if the Division's minimum manning requirements are met. That choice can also necessitate overtime work, which can be mandated, or pulling a Patrol Deputy away from his or her work on a contract. Sergeant Kaber likewise considers each Detective's skill level and expertise. In our view, the fact that Sergeant Kaber often asks the Detectives whether they can take a case is not dispositive here. The Patrol Division's Training Sergeant can also assign subordinates internal training without getting a Lieutenant's approval. In the other Division, when Corrections Sergeants decide how to assign work, they consider Corrections Deputies' experience levels, where Corrections Deputies were assigned on other days, whether they are FTOs, and whether a post is particularly challenging. Corrections Sergeants can also decide to allow vacation time for one subordinate, even if that means that another subordinate will have to work overtime.

Responsibly to Direct

The term "direct" can refer to deciding what job shall be undertaken next or who shall do it. Moreover, the person directing must be "accountable" for the success or failure of those whom he or she is directing. City of Portland , UC-017-13 at 25-26, 25 PECBR at 1020-21 (citing Oakwood Healthcare , Inc ., 348 NLRB 686, 691-92 (2006)). Additionally, employees "responsibly" direct others as the statute requires when they are "accountable for the performance of the task by the other, such that some adverse consequence may befall the one providing the oversight if the tasks performed by the employee are not performed properly." City of Portland , UC-017-13 at 27, 25 PECBR at 1022 (quoting Oakwood Healthcare , Inc ., 348 NLRB at 691-92). Here, we cannot conclude that the Sergeants "direct" as that term is used in ORS 243.650(23)(a).

The record does demonstrate that Sergeants regularly instruct, direct, and coach their subordinates, and also review and correct their work. This is evident in Sergeants' performance reviews and briefings and in how they handle subordinates' reports, for example. Limited evidence also generally indicates that Sergeants are "responsible" and "accountable" for their subordinates. However, the totality of the evidence presented for that issue is split and ultimately does not support a conclusion that the Sergeants "responsibly direct" as required by the statute.

As noted, neither Lieutenant has ever disciplined a Sergeant because of the conduct or work of a Sergeant's subordinate. It is also unclear that they would ever really do so. Sergeants would purportedly be held responsible or disciplined for giving bad advice to a subordinate, failing to take appropriate action in response to a subordinate's unethical or unlawful action, or for failing to address issues with subordinates' reports or monitor for discriminatory harassment. But that sort of evidence largely shows superiors making sure the Sergeants do their own work appropriately, and has less to do with whether the subordinates are following the Sergeants' direction. The only adverse consequence for a Sergeant that was discussed during the hearing came after a Corrections Sergeant issued a written reprimand without getting his Lieutenant's permission first, and even that example was relatively ambiguous. To the extent that the Sheriff's Office's policy manuals ostensibly provide some higher level of accountability for Sergeants, those manuals do not appear to accurately reflect reality.

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Discipline

The record does not demonstrate that Sergeants can currently "discipline" with independent judgment. As noted, Sergeants cannot issue discipline, including written reprimands, on their own. Instead, Sergeants are required to get a Lieutenant or Sheriff Kaber's approval. The one clear example of a Sergeant issuing formal discipline on his own, which was a written reprimand, was from 1998, possibly before the Sergeants' unit was even formed, and thus is quite unlikely to reflect current authority. (Exh. P-28.) In essence, Sergeants can only recommend formal discipline to their Lieutenant or Sheriff Kaber. Furthermore, if a Sergeant issued formal discipline without consulting with a superior, that Sergeant could be counseled or disciplined. In practice, when discipline is issued, it usually emanates from a Lieutenant or Sheriff Kaber, and is preceded by a formal Internal Affairs investigation. Sergeants can issue verbal counseling and letters of instruction with some level of independence, but the Sheriff's Office does not consider those actions to be discipline. In the Patrol Division, several counselings can eventually lead to formal discipline, but that formal discipline is unlikely to be issued with independent judgment for the reasons given above. As for whether a Sergeant's recommended discipline is "effective," in our view, the record presented does not show such recommendations regularly being accepted without significant modification and reconsideration.

Suspend

Sergeants have not been shown to be able to suspend or recommend suspension with independent judgment as required by the statute. Patrol Sergeants can send Patrol Deputies home from a shift if Lieutenant Swan is unavailable, but it is unclear whether that has ever occurred, or whether a Patrol Deputy can independently be sent home without pay. Additionally, sending someone home who patently has "extreme emotional or physical problems," is sick, or smells of alcohol would not demonstrate the use of meaningful discretion (and otherwise is not considered discipline here). A Sergeant can recommend that a subordinate be suspended, and could do so in an Internal Affairs investigation report. But the overall record indicates that, whenever a Sergeant recommends a suspension, that recommendation will always be carefully and independently reviewed, reconsidered, and potentially modified by a superior officer. That does not indicate that the recommendations are "effective."

Reward

The evidence also does not show that Sergeants can reward as that term is used in ORS 243.650(23)(a). As indicated above, Sergeants cannot give their subordinates tangible rewards such as a monetary bonus or raise, a new patrol car, or additional time off. In addition, Sergeants' performance reviews do not result in any kind of reward. Sergeants can indeed give positive feedback, but that does not amount to the sort of substantive supervisory authority contemplated by the statute.

Sergeants likewise play a role in selecting Deputies for special, premium pay assignments as outlined above. However, that role is quite limited and, as a result, does not demonstrate independent judgment. While Patrol Sergeants may potentially have a more significant role in the selection of FTOs as an FTEP Supervisor, the decision making process for that specific role was

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not well developed in the record. Further, in this case, the selection of employees to be FTOs or for other special designations is much more akin to an assignment than a reward. See City of Portland , UC-017-13 at 31, 25 PECBR at 1026.

Conclusion

The Sergeants are "supervisory employees" as defined in ORS 243.650(23)(a) because they assign subordinates work, use independent judgment in doing so, and hold that authority in the interest of management.

The Sergeants employed by the County in the Sheriff's Office are excluded from bargaining.

SIGNED AND ISSUED on December 16, 2020.

/s/ _________
Martin Kehoe
Administrative Law Judge

NOTE: The Employment Relations Board's rules provide that the parties shall have 14 days from the date of service of a recommended order to file specific written objections with this Board. (The "date of filing objections" means the date objections are received by this Board; "the date of service" of a recommended order means the date this Board mails or personally serves it on the parties.) A party that files objections to a recommended order with this Board must simultaneously serve a copy of the objections on all parties of record in the case and file proof of such service with this Board. The objections must be mailed, emailed, faxed, or hand-delivered to this Board. To file by email, please attach the filing as a PDF and send it to ERB.filings@oregon.gov. This Board may disregard the objections of a party that fails to comply with those requirements, unless the party shows good cause for its failure to comply. (See Board Rules 115-010-0010(10) and (11); 115-010-0090; 115-035-0040; and 115-070-0055.)