ALASKA LABOR RELATIONS AGENCY
3301 EAGLE STREET, SUITE 208
P.O. BOX 107026
ANCHORAGE, ALASKA 99510-7026
Fax (907) 269-4898
ALASKA STATE EMPLOYEES ) ASSOCIATION, AFSCME LOCAL ) 52, AFL-CIO, ) Petitioner, ) ) vs. ) ) STATE OF ALASKA, ) Respondent, ) ) and ) ) CONFIDENTIAL EMPLOYEES ) ASSOCIATION, ) Intervenor. ) _______________________ ) CASE NO. 93-137-UC
DECISION AND ORDER NO. 166
This matter was heard on February 1, 1993, in Anchorage, Alaska, with Hearing Officer Jean Ward presiding. Alaska Labor Relations Agency Chair Alfred Tamagni and Board Members James Elliott and Darrell Smith participated on the record. The record closed on February 5, 1993.
Richard Seward, Business Agent, for petitioner Alaska State Employees Association; Art Chance, Labor Relations Analyst, for respondent State of Alaska; and Greg O'Claray, Director of Legislative Affairs for Marine Beneficial Association, for intervenor Confidential Employees Association.
A clerk IV who assists and acts in a confidential capacity to a personnel officer who formulates, determines and effectuates management policies in labor relations matters should be included in the confidential unit based on the factors in AS 23.40.090.
Findings of Fact
1. Alaska State Employees Association, AFSCME Local 52, AFL-CIO (ASEA), is the recognized bargaining representative of all permanent, probationary, provisional and nonpermanent personnel (excepting those employed in the student, college and graduate intern job classes) in the general government unit. Notice of Petition, at 1-2, Oct. 9, 1992.
2. Confidential Employees Association (CEA) is the recognized bargaining representative of all permanent, probationary, provisional, and nonpermanent employees engaged in performing personnel/payroll functions and services and as defined in 2 AAC 10.220(b)(1)1. Id. at 2.
3. On August 24, 1992, ASEA notified the Agency that it objected to the proposed transfer of a clerk IV (PCN 25-1258) from the general government unit to the confidential unit and it petitioned the Agency to decide the appropriate bargaining unit for this position.
4. Because the petition met the requirements for filing under 2 AAC 10.050, the Agency caused a notice of petition to be posted on October 20, 1992. 2 AAC 10.060 & 2 AAC 10.070.
5. Albert C. Agee, the incumbent in PCN 25-1258, works as a clerk IV in the northern region personnel office for the Department of Transportation and Public Facilities (DOT). This personnel office is staffed by four other employees who occupy the following positions: clerk typist III, personnel assistant I, personnel assistant II, and personnel officer II. Joint Exh. 1, at 11. Together these five individuals are responsible for personnel functions for approximately 1,000 DOT employees in the northern region.
6. Of the five positions in the northern region personnel office, only Agee's position is assigned to the general government unit. The remaining positions are placed in the confidential unit.
7. After the northern region personnel office experienced an increase in workload when the personnel offices in Valdez and Nome closed, the switchboard operator's position was reassigned from the budget section to the personnel office. Agee, who had been working as a clerk typist III in the personnel office, was appointed to a vacant clerk IV position. As the clerk typist III, he had been a member of the confidential unit.
8. The clerk typist III performs many of the same duties as Agee. One difference between the positions is that the clerk typist III spends approximately 50 percent of her time handling the switchboard while Agee does not.
9. Agee spends 90 percent of his time performing duties in four major categories: paperwork, assisting the personnel officer, supervising the clerk typist III, and managing workers' compensation files. He spends the remaining 10 percent of his time performing miscellaneous duties.
a. Agee spends 25 percent of the time dealing with various types of paperwork related to personnel actions. Included in this category is time spent explaining the various forms to employees.
b. He spends another 25 percent of the time assisting the personnel officer, personnel assistant, supervisors, employees, and the general public with a variety of personnel matters. Included in this category are such activities as calculating late merit step increases and layoff points; typing responses to level I and II grievances or complaints, disciplinary and suspension letters, or memos from the personnel officer II to higher level managers which outline the State's assets and liabilities concerning labor relations matters; conducting research for contract negotiations or administration; and applying five different collective bargaining agreements, as well as personnel rules, policies, and procedures.
c. Agee spends another 20 percent of the time supervising and training the clerk typist III.
d. He spends 20 percent of the time processing workers' compensation claims, composing correspondence to adjustors, maintaining workers' compensation files, and submitting a yearly accident report to the Department of Labor and the safety officer.
e. During the remaining 10 percent of the time, Agee relieves the clerk typist III from switchboard and reception duties, maintains stocks of office supplies, conducts a yearly equipment inventory, processes applications for employee notary bonds and state identification cards, and makes travel arrangements.
10. Agee routinely handles documents that are confidential under the provisions of AS 39.25.080.
11. Agee receives work assignments from both his immediate supervisor, Pamela McQuary, and Bruce Senkow, who is McQuary's supervisor. McQuary occupies the personnel assistant II position and Senkow occupies the personnel officer II position. McQuary compares her job to that of an office manager. She assigns the more routine work and Senkow gives Agee special work assignments pertaining to labor relations matters. Although McQuary may perform some research for collective bargaining purposes, she does not do as much of this type of work as she did previously because it is now assigned to other employees in the unit.
12. Agee performs labor relations tasks although he does not participate in upper level management meetings. Although labor relations personnel do not contact Agee directly to provide information for negotiations, Agee did conduct research for a letter of agreement for labor, trades, and crafts haul road employees. Agee researches contract interpretation questions, primarily on behalf of the 1,000 DOT employees in the northern region. Although Agee does not decide the question himself, Agee assists Senkow in interpreting the research, which Senkow then uses to form and implement management policies in labor relations matters. In addition, because Agee types both drafts and final copies of grievance responses, he is aware of management strategies and changes that occur as grievance settlements are negotiated. Agee supports and assists management's confidential work in collective bargaining and labor relations matters.
13. While the highest level of labor relations authority is at the Department of Administration, the DOT personnel office has some labor relations authority, as does each of the three regional DOT personnel offices. Senkow works closely with Bruce Cummings, a labor relations analyst at DOT, and Janet Ignell, the human resource manager for DOT. Senkow is consulted on labor relations issues that may have statewide significance. He makes recommendations to Cummings and Ignell, as well as to various DOT managers in the northern region. His recommendations are usually followed. Senkow is considered the resident expert in personnel and labor relations matters for DOT's 1,000 northern region employees and is well respected for his abilities.
14. John Martin, the transportation planner III, believes the five personnel staff members must be in a separate bargaining unit due to the confidential nature of the work they perform. He believes that grievance and labor relations matters should stay within the confidential unit while disputes are pending.
15. Agee prefers to be in the confidential unit.
16. McQuary has full supervisory responsibilities for Agee and Dora Logan, who is a personnel assistant I. Although Agee has some supervisory responsibilities for the clerk typist III, he does not have full responsibility because he cannot suspend, discharge or resolve grievances for this employee.
17. No evidence was presented concerning any differences between wages and hours for general government unit employees and confidential unit employees, or regarding the history of collective bargaining.
18. Agee assists and acts in a confidential capacity to Senkow, who formulates, determines, and effectuates management policies in labor relations matters. Therefore, Agee's interests are more closely aligned with the employees who work in the confidential unit than with the employees who work in the general government unit.
Conclusions of Law
1. The State of Alaska is a public employer under AS 23.40.250(7), and the Alaska Labor Relations Agency has jurisdiction to consider unit clarification petitions under AS 23.40.090.
2. Petitioner ASEA has the burden to prove each element necessary to its cause by a preponderance of the evidence under 8 AAC 97.350(f).2
3. Under AS 23.40.090,
The labor relations agency shall decide in each case, in order to assure to employees the fullest freedom in exercising the rights guaranteed by AS 23.40.070 --
23.40.260, the unit appropriate for the purposes of collective bargaining, based on such factors as community of interest, wages, hours, and other working conditions of the employees involved, the history of collective bargaining, and the desires of the employees. Bargaining units shall be as large as is reasonable, and unnecessary fragmenting shall be avoided.
4. The confidential unit is described in the notice of petition as all "permanent, probationary, provisional, and nonpermanent employees, engaged in performing personnel/payroll functions and services and as defined in 2 AAC 10.220(b)(1)." 2 AAC 10.220(b)(1) defines "confidential employee as" an employee who assists and acts in a confidential capacity to a person who formulates, determines, and effectuates management policies in the area of collective bargaining. The term "confidential employee" shall be narrowly construed;
After the date of the hearing on February 1, 1993, the definition of "confidential employee" changed. Effective July 22, 1993, the Agency amended the definition in 8 AAC 97.990(a)(1) to mean,
an employee who assists and acts in a confidential capacity to a person who formulates, determines, and effectuates management policies in labor relations matters.
The requirement that "the term "confidential employee" must be narrowly construed" now appears in 8 AAC 97.990(a)(1). The only difference is the substitution of "labor relations matters" for "collective bargaining," which could have the effect of expanding the definition to cover other labor relations matters besides collective bargaining. In this case, we conclude that Agee works in a confidential capacity in support of both collective bargaining and the broader range of labor relations activities, see finding of fact no. 12. State v. Alaska State Employees Ass'n, Decision & Order No. 132A at 12 (Oct. 29, 1991).
5. Placement of the clerk IV position in the confidential unit is appropriate based on the confidential assistance Agee provides to Senkow in typing responses to grievances, letters of discipline, and Senkow's letters to managers outlining recommended courses of action; conducting research for letters of agreement; and other similar activities. As a result of these activities, Agee has knowledge of management strategy, tactics, and secrets in labor relations matters, including collective bargaining as opposed to merely handling documents that are confidential under AS 39.25.080. Because Senkow formulates, determines, and effectuates management policies in labor relations matters, Agee meets the definition of "confidential employee" due to the confidential assistance he provides to Senkow.
6. ASEA argues that Agee cannot be placed in the confidential unit because his supervisor is also in the confidential unit. While placement in the same unit with his supervisor is a factor to consider, it is but one of the factors affecting Agee's community of interest. Other important factors include the nature and scope of the work he performs, as well as the employer's need to assure confidentiality of sensitive labor relations matters.
7. The preponderance of evidence establishes that Agee shares a greater community of interest with employees in the confidential unit than he does with employees in the general government unit.
We deny the Alaska State Employee Association's petition and order that the clerk IV, PCN 25-1258, at the Department of Transportation and Public Facilities, northern region, be placed in the confidential unit.
Dated: September 17, 1993.
THE ALASKA LABOR RELATIONS AGENCY
Alfred L. Tamagni, Sr.
James W. Elliott, Board Member
Darrell Smith, Board Member
An Agency decision and order may be appealed through proceedings in superior court brought by a party in interest against the Agency and all other parties to the proceedings before the Agency, as provided in the Alaska Rules of Appellate Procedure and the Administrative Procedures Act.
The decision and order becomes effective when filed in the office of the Agency, and unless proceedings to appeal it are instituted, it becomes final on the 31st day after it is filed.
I hereby certify that the foregoing is a full, true and correct copy of Decision and Order No. 166 in the matter of Alaska State Employees Ass'n AFSCME Local 52 AFL-CIO, v. State of Alaska and Confidential Employee Ass'n, Intervenor, case no. 93-137-UC, dated and filed in the office of the Alaska Labor Relations Agency in Anchorage, Alaska, this 28th day of September, 1993.
Victoria D.J. Scates
This is to certify that on the 28th day of September, 1993, a true and correct copy of the foregoing was mailed, postage prepaid, to
Richard Seward, ASEA
Art Chance, State
Greg O'Claray, CEA
1Effective July 22, 1993, 2 AAC 10.220(b)(1), which defined confidential employee, was replaced by 8 AAC 97.990 (a)(1). Under the former law confidential employee was defined as "an employee who assists and acts in a confidential capacity to a person who formulates, determines and effectuates management policies in the area of collective bargaining." Confidential employee is now defined as "an employee who assists and acts in a confidential capacity to a person who formulates, determines, and effectuates management policies in labor relations matters."
22 AAC 10.430 prior to July 22, 1993.