ALASKA LABOR RELATIONS AGENCY
3301 EAGLE STREET, SUITE 208
P.O. BOX 107026
ANCHORAGE, ALASKA 99510-7026
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PUBLIC SAFETY EMPLOYEES ) ASSOCIATION (Correctional Officers), ) ) Petitioner, ) ) vs. ) ) STATE OF ALASKA, ) DEPARTMENT OF CORRECTIONS, ) ) Respondent, ) and, ) ) ALASKA STATE EMPLOYEES ASSOCIATION, ) AFSCME LOCAL 52, AFL-CIO, ) ) Intervenor. ) ________________________________________) CASE NO. 95-379-RD
DECISION AND ORDER NO. 211
Digest: A strong community of interest, a national tradition of separate representation, and the recognition of the unique characteristics of these employees in the existing bargaining relationship justify severing the correctional officers from the general government unit, despite their adequate representation by their current bargaining representative.
Statement of the Case
The Public Safety Employees Association (PSEA) seeks to sever approximately 750 correctional officers from the general government unit and represent them in bargaining. PSEA filed its petition to represent the correctional officers on February 10, 1995. On March 6, 1995, the Agency advised that PSEA had satisfied the requirement of a showing of interest and requested the State of Alaska to post copies of the notice of petition. The State advised on April 11, 1995, that it had posted the notice at approximately 32 work sites. The Alaska State Employees Association, AFSCME Local 52, AFL-CIO (ASEA) objected to the petition on March 13, 1995, and requested a hearing. The State filed its objection on March 20, 1995.
Several motions were filed with the Agency. On March 22, 1995, PSEA moved to quash a subpoena issued on behalf of the State for an unused interest card. The hearing examiner granted the motion on March 31, 1995. On April 3, 1995, ASEA requested the Agency to produce the signed showing of interest cards or a blank or redacted showing of interest card under the public records act. On June 29, 1995, the ASEA moved to dismiss based upon the contract bar in AS 23.40.100(e). It also filed a motion to submit documents under seal -- cards revoking the designation of PSEA as bargaining representative and expressing support for ASEA. ASEA also moved to dismiss based upon an inadequate showing of interest. On July 3, 1995, PSEA and the State opposed the motion to dismiss on the contract bar. On July 5, 1995, PSEA moved to quash a subpoena issued on behalf of ASEA. On July 10, 1995, PSEA opposed the motion to seal documents and the motion to dismiss based upon the inadequacy of the showing of interest.
The Agency delegated to the hearing examiner the authority to conduct the hearing. The case was heard on July 10, 11, and 12, 1995. The record closed on August 25, 1995, with the receipt of written closing statements.
On August 30, 1996, the Agency amended the panel assignment to substitute board member Blair E. Schad for former member Stuart H. Bowdoin, Jr., and on October 1, 1996, the Agency amended the panel assignment to substitute board member Robert A. Doyle for member James W. Elliott, who recused himself.
Panel: Board members Blair E. Schad, Robert A. Doyle, and Karen J. Mahurin, participating after review of the record.
Appearances: James A. Gasper, Jermain, Dunnagan & Owens, P.C., for petitioner Public Safety Employees Association; Art Chance, labor relations analyst, for respondent State of Alaska; and Don Clocksin, attorney, for intervenor Alaska State Employees Association, AFSCME Local 52, AFL-CIO.
Procedure in this case is governed by 8 AAC 97.330, 8 AAC 97.350 -- 8 AAC 97.480. Hearing examiner Jan Hart DeYoung presided.
1. Can a competing union challenge the petitioning unions showing of interest?
2. Can ASEA submit under seal cards revoking the designation of PSEA and expressing preference for ASEA as bargaining representative?
3. Is the burden to prove severance of a group from an existing bargaining unit greater than the preponderance of the evidence standard?
4. Does the general government unit collective bargaining agreement bar consideration of this petition under AS 23.40.100(e)?
5. Is the proposed unit of correctional officers I, II, and III an appropriate unit under AS 23.40.090?
6. Has PSEA satisfied the requirements in 8 AAC 97.025(b) for severance of the correctional officers from the general government unit, taking into account the factors in Mallinckrodt Chemical Works, 162 N.L.R.B. No. 48, 64 L.R.R.M.(BNA) 1011, 1016 (1966)?
Summary of the Evidence
Petitioner Public Safety Employees Association offered the following exhibits, which were admitted into the record:
1. Alaska Police Standards Council, application forms (Nov. 1988);
2. Class Specification, Correctional Officer series, recruit through III;
3. Recruitment bulletins for correctional officer vacancies (various);
4. Extract, Alaska Dept of Corrections, Policy & Procedure Manual (uniform) (July 31, 1987);
5. Extract, Alaska Dept of Corrections, Policy & Procedure Manual (code of ethics, standards of conduct) (July 22, 1991);
6. Extract, Alaska Dept of Corrections, Policy & Procedure Manual (police stds employee background investigations) (Nov. 4, 1992);
7. Various Alaska State statutes and regulations; and
8. ASEA announcement for Corrections United summit conference on July 23-25, 1995.
Respondent State of Alaska offered the following exhibits, which were admitted into the record:
A. Class Specification, correctional officer recruit (Sept. 1, 1990) (current);
B. Class Specification, correctional officer I (Jan. 20, 1994) (current);
C. Class Specification, correctional officer II (Jan. 20, 1994) (current);
D. Class Specification, correctional officer III (Jan. 20, 1994) (current);
E. Class Specification, correctional officer III (Sept. 17, 1984) (eff. in 1987);
F. Class Specification, correctional officer II (June 6, 1983) (eff. in 1987);
G. Class Specification, juvenile probation officer IV (June 25, 1990);
H. Class Specification, psychiatric nursing assistant I (July 16, 1980);
I. Class Specification, psychiatric nursing assistant II (July 16, 1980);
J. Class Specification, psychiatric nursing assistant III (July 16, 1980);
K. Class Specification, psychiatric nursing assistant IV (July 16, 1980);
L. Class Specification, youth counselor class series (June 6, 1983);
M. Class Specification, adult probation officer class series (Aug. 1, 1991);
N. Class Specification, State trooper class series (April 16, 1985);
O. 1995-1996 general government unit interim agreement;
P. 1990-1993 general government unit collective bargaining agreement; and
Q. 1984-1986 general government unit collective bargaining agreement.
Intervenor Alaska State Employees Association, AFSCME Local 52, AFL-CIO, offered the following exhibits, which were admitted into the record:
201-225. Class specifications for correctional officers class series (various);
226. Recruitment bulletin (Jan. 3, 1994);
227. Recruitment bulletin (Feb. 14, 1994);
228. Recruitment bulletin (Aug. 8, 1994);
229. Recruitment bulletin (Sept. 12, 1994);
230. Alaska Police Standards Council, medical examination form;
231. Position description questionnaire (PDQ) (CO I-II) (20-6735);
232. PDQ (CO I-II) (20-8019);
233. PDQ (CO II) (20-6733);
234. PDQ (CO II) (20-6139);
235. PDQ (CO II) (20-6141);
236. PDQ (CO II) (20-4108);
237. PDQ (CO II) (20-6718);
238. PDQ (CO III) (20-6136);
239. PDQ (CO III) (20-6132);
240. PDQ (CO III) (20-6131);
241. PDQ (CO III) (20-5151);
242. Extract, Alaska Dept of Corrections, Policy and Procedure Manual (police stds employee background investigations) (Nov. 4, 1992);
243. Extract, Alaska Dept of Corrections, Policy and Procedure Manual (police stds employee background investigations) (July 22, 1991);
244. Extract, Alaska Dept of Corrections, Policy and Procedure Manual (police stds employee background investigations) (July 31, 1987);
245. Class Specification, fish & wildlife enforcement officer (Dec. 15, 1988);
246. Class Specification, State trooper class series (April 16, 1985);
247. Class Specification, adult probation officer class series (Aug. 1, 1991);
248. Class Specification, youth counselor class series (June 6, 1983);
249. Class Specification, psychiatric nursing assistant series (July 16, 1980);
250. Class Specification, juvenile probation officer IV (June 25, 1990);
251. ASEA, Workload statistics (Dec. 31, 1994);
252. ASEA, Anchorage grievances (1994);
253. ASEA, Arbitrations and grievances (various);
254. Alaska Correctional Employees Assn v. Alaska Public Employees Assn, SLRA Order & Decision No. 105 (May 14, 1987);
255. Alaska Institutional Security Employees Assn & Alaska Public Employees Assn v. Alaska State Employees Assn, SLRA Order & Decision No. 112 (Mar. 22, 1988);
256. R. Kliesmet, IUPA, letter to G. McEntee, AFSCME (May 23, 1994);
257. L. Kirkland, AFL-CIO, letter to all presidents (Dec. 15, 1994) (severing ties with PSEA);
258. K. Perrin, letter to all chapter board members (Jan. 12, 1995);
259. Videotape, AFSCME Corrections United, Mandate for Change;
260. Report, AFSCME Corrections United, Mandate for Change;
261. Brochure, Nobodys Tougher;
262. "News from AFSCME Corrections United" (Mar. 1995);
263. Executive proclamation (national correctional officers week) (May 5, 1995);
264. Advertisement for national correctional officers week;
265. Extract, 1990-1993 general government unit collective bargaining agreement (CO work schedule);
266. 1995-1996 general government unit interim agreement;
267. 1996-1999 general government unit collective bargaining agreement;
268. Bargaining notes (7/10-14/95);
269. ASEA total grievances (1990-1995);
270. D. Burdette, expense report (various 1992);
271. ASEA, solidarity update (June 6, 1995);
272. ASEA Resolution No. 18 (to study separate chapter for adult and youth corrections classifications);
273. Class Specification, investigator class series (various);
274. Class Specification, environmental health officer class series (various);
275. ASEA, Newly adopted resolution No. 9C (1992) (correctional officers); and
276. Magazine, AFSCME (July/Aug. 1995).
Petitioner Public Safety Employees Association presented the testimony of Director, Alaska Police Standards Council, Laddie Shaw; and correctional officers III George Hiller, Bruce Main, and Robert Palmquist.
Respondent State of Alaska did not present any witnesses.
Intervenor Alaska State Employees Association, AFSCME Local 52, AFL-CIO, presented the testimony of ASEA business agents David Burdette and Charles L. O'Connell; director for AFSCME Corrections United, Michael Marette; correctional officers II Gary Sampson, Sherrie Morrison-Burch Gary Damron, and Richard Russell; and correctional officer III Joe Rogers.
C. Agency case file. 8 AAC 97.410.
Findings of Fact
The panel, by a preponderance of the evidence, finds the facts as follows:
1. The Public Safety Employees Association (PSEA) is recognized by the State of Alaska as the bargaining representative of members of the public safety officers unit.
2. The Alaska State Employees Association, AFSCME Local 52, AFL-CIO (ASEA), is recognized by the State as the bargaining representative of the general government unit (GGU), which consists of a range of positions, from clerical to professional employees and including correctional officers.
3. In this petition PSEA seeks to sever from the ASEAs GGU approximately 750 correctional officers I, II, and III and to represent them in a new, separate unit. The proposed unit follows:
Included: All state employees occupying the title of corrections officers I, II, and III.
Excluded: All other state employees.
4. The correctional officers duties, responsibilities and training and their common purpose and working conditions in the Department of Corrections provide a strong community of interest among the correctional officers.
5. The compensation of correctional officers distinguishes them from other members of the GGU.
6. The hours of correctional officers distinguish them from other members of the GGU.
7. Although the correctional officers share some working conditions with other members of the GGU, they interact more closely and share more working conditions with other correctional officers.
8. All correctional officers are class (a)1 and are ineligible to strike under AS 23.40.200(b).
9. Both existing and proposed units have employee supporters.
10. Severing the correctional officers from the GGU will not result in excessive or unnecessary fragmentation or disruption largely because the ASEA and the State already bargain for this group separately.
11. Correctional officers receive better than adequate representation from the ASEA.
12. The correctional officers have been in the GGU since 1973. Their bargaining history includes two previous efforts to sever from the GGU, and in recent years, bargaining of separate terms in the GGU collective bargaining agreement.
13. The profession of correctional officer has a national tradition of separate representation.
14. The correctional officers comprise a distinct and homogenous group.
15. PSEA is qualified to represent a unit of correctional officers, who share some interests and a strike classification with members of the public safety unit that PSEA represents currently.
This case is another effort by the PSEA to sever a group of employees from the general government unit and represent them in bargaining.1 There is a significant difference in this case, however. The PSEA seeks to represent correctional officers in a separate, new unit, rather than in its public safety unit. Another significant difference is that this group of employees has some status as a subgroup or unit within the existing bargaining unit structure.
The issues in this case, as in all other cases to sever a group of employees from an existing unit, are whether the proposed unit is appropriate under AS 23.40.090 and whether the petitioner has satisfied the conditions of 8 AAC 97.025(b). The case also includes issues on attacking the petitioners showing of interest and on the contract bar in AS 23.40.100(e).
1. Can a competing union challenge the petitioning unions showing of interest?
Shortly before the hearing ASEA filed a motion "to dismiss on the basis that PSEA failed to make the necessary showing in support of its petition." To initiate a representation election, a union must demonstrate the support of at least 30 percent of the workers it seeks to represent. AS 23.40.100(a)(1). ASEA in this motion is challenging PSEAs continued support from the workers. PSEA opposes the motion by arguing that the showing of interest is an administrative determination that is not subject to ASEAs collateral attack.
8 AAC 97.060(c) establishes the finality of the determination on a petitioners showing of interest:
The labor relations agency will investigate the employee petition or interest cards submitted by the petitioner and determine whether the petition is supported by 30 percent of the employees in the proposed bargaining unit. The agency's determination under this section is final, except as provided in 8 AAC 97.470.
8 AAC 97.470 provides for appeals to the Agency from rulings or orders of a hearing officer. Under this section an appeal from a determination on showing of interest must be made to the board after the determination. A party may not collaterally attack the determination in another proceeding. This Agency has stated:
The showing of interest is not at issue in these proceedings. It is a threshold determination made by the Agency when a petition is first filed. To determine whether a representation petition is supported by 30 percent of the employees in the proposed bargaining unit, the Agency investigates interest cards or an employee petition submitted by the petitioner. 8 AAC 97.060(c). The showing of interest must be satisfied before other parties and this Agency are required to undergo the expense and effort of an election and related proceedings. One commentator has stated that the National Labor Relations Boards similar requirement of a showing of interest prevents the Board from getting bogged down in elections that the union has no chance of winning. B. Feldacker, Labor Guide to Labor Law 27 (3d ed. 1990). The determination that a showing of interest is sufficient is final and only subject to review under 8 AAC 97.470. 8 AAC 97.060(c).
Public Safety Employees Assn (F.W.E.O.) v. State, Decision & Order No. 186, at 9 (May 25, 1995); In re City of Fairbanks, Dept of Labor,
Labor Relations Agency, Order & Decision No. 84-1, at 15 (case no. RC-A83-1, Aug. 29, 1984). This Agencys position is consistent with the position of the NLRB. Fish Plant Services, 311 N.L.R.B. No. 182, 145 L.R.R.M.(BNA) 1157 (1993).
In this case ASEA is challenging PSEAs continued support. Under similar circumstances the NLRB found that a question of continued employee support can be better resolved at an election than by an administrators count of competing interest cards. In General Dynamics Corp., 175 N.L.R.B. No. 155, 71 L.R.R.M.(BNA) 1116 (1969), the Board stated:
It is well established that the showing of interest is an administrative matter not subject to litigation. We note, however, that the showing is not subject to attack on the ground that the cards on which it is based have been revoked or withdrawn. Such an attack has no bearing on the validity of the original showing but merely raises the question as to whether the particular employees have changed their minds about union representation. That question can best be resolved on the basis of an election by secret ballot.
On the other hand, allowing reassessment of employee support would be an administrators headache. In this case, for example, the Agency would need to compare the original interest cards with the new cards, removing any of the original cards that employees indicated an intention to revoke. Given the number of employees in the unit, the 92 cards ASEA states in its motion that it has filed are unlikely to affect the showing of interest. However, even if ASEA were able to show that PSEA did not have the continuing support of 30 percent of the bargaining unit, the Agency would not dismiss the petition. The Agency would provide PSEA with a period of time to supplement its showing of interest. 8 AAC 97.060(e) provides six days to supplement a showing of interest after the Agency notifies a petitioner that the showing is insufficient. Hypothetically, if the Agency were to accept ASEAs argument and allow the sufficiency of the showing of interest to be attacked at any stage of the proceeding, it could find itself periodically checking cards. Regular card solicitations would disrupt the work place and the card checks would tax Agency resources. The better policy is to allow any changes in employee support to influence the vote at a secret ballot election and leave the initial showing of interest undisturbed.
ASEAs motion is denied.
2. Can ASEA submit under seal cards revoking the designation of PSEA and expressing preference for ASEA as bargaining representative?
ASEA seeks to file under seal a number of interest cards by correctional officers seeking to revoke any support for PSEA and confirm their support for ASEA. ASEA argues that these cards should be allowed the same confidentiality as the interest cards filed in support of a representation petition. PSEA argues that the confidentiality provisions in the regulations do not cover revocation cards. It further argues that it should be allowed to see the cards to enable it to contact the signers to determine whether the signers were coerced or otherwise pressured into revoking their expression of interest for PSEA.
The confidentiality of interest cards is addressed in 8 AAC 97.060(d), which provides:
The employee petition or interest cards in support of a showing of interest are confidential records that may not be disclosed and are not part of the public record.
The reason for confidentiality is to protect employees from retaliation by employers or their agents. In addition, the fear of retaliation could chill employees from exercising their rights if they knew their support for a union were public. This rationale supports extending confidentiality to all interest cards. In the case of a decertification petition, the bargaining representative might have the motive and ability to punish a "dissident." While it may be more difficult for the raiding union to retaliate against a worker, it is not impossible. We believe the risk to employees justifies keeping such records confidential. PSEA has stated it wants to interview employees signing ASEAs interest cards. Because we have determined that ASEA may not attack the showing of interest by motion in this case, disclosing the identity of the employees who signed ASEAs cards would not serve any purpose.
Another reason to deny disclosure to PSEA avoids granting a right to only one of two competing unions. PSEA would have the Agency deny ASEA access to interest cards PSEA solicited but grant PSEA access to the cards ASEA solicited. We see no justification for such discrimination.
We therefore construe the language in 8 AAC 97.060(d) to cover all interest cards or petitions bearing on showing of interest, whether the interest card expresses support or its absence for the petitioning or intervening unions or for no representative at all. ASEAs motion to file the cards under seal is granted.
3. Is the burden to prove severance of a group from an existing bargaining unit greater than the preponderance of the evidence standard?
8 AAC 97.350(f) establishes the burden of proof in representation petitions, including a petition to sever an existing bargaining unit. Under 8 AAC 97.350(f) PSEA as the petitioner has the burden to prove each element of its claims by a preponderance of the evidence. ASEA argues that the burden is greater than a simple preponderance of the evidence, misinterpreting Public Safety Supervisory Assn v. State, Decision & Order No. 188, at 22 (May 25, 1995). ASEA's Closing Brief, at 2. The statement that a petitioner seeking to carve out a unit from an existing bargaining unit faces a significant burden describes only the difficulty of establishing the factors set out in 8 AAC 97.025(b) and Mallinckrodt Chemical Works, 162 N.L.R.B. No. 48, 64 L.R.R.M.(BNA) at 1016. The Agency has not changed the burden of proof in these cases. It was and remains the "preponderance of the evidence" standard under 8 AAC 97.350(f).
4. Does the State/ASEA collective bargaining agreement bar consideration of this petition under AS 23.40.100(e)?
ASEA filed a motion to dismiss this petition based on the contract bar doctrine. The basis of the motion is that the collective bargaining agreement the ASEA negotiated with the State, which became effective while this petition was pending, should bar the election under AS 23.40.100(e). That section bars elections in a bargaining unit during the term of the agreement or for a period of three years. We addressed this argument in Public Safety Employees Assn (Weigh station operators) v. State of Alaska, Department of Public Safety, Decision & Order No. 201, at 9-10 (April 4, 1996), appeal pending case no. 3AN-96-3522 CI (Super. Ct., filed May 6, 1996). We held that, although the policy of not disrupting an agreement and bargaining relationship is an important one, it should not bar an election if the petition is filed during the window period or after the expiration of the agreement but before a new one is reached. See also Dennis Chemical Co., Inc., 196 N.L.R.B. No. 37, 79 L.R.R.M.(BNA) 1659 (1972); Appalachian Shale Products Co., 121 N.L.R.B. No. 149, 42 L.R.R.M.(BNA) 1506 (1958).
ASEAs motion is denied.
5. Is the proposed unit of correctional officers I, II, and III an appropriate unit under AS 23.40.090?
PSEA must establish that the unit it proposes, a unit of approximately 750 correctional officers I, II, and III, would be an appropriate unit for 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. In addition, units must be as large as is reasonable and avoid unnecessary fragmenting. AS 23.40.090.
A review of these factors shows that the community of interest, wages, hours, and working conditions support a separate unit for the correctional officers. The history of bargaining for this work group shows that they have been in the GGU since its creation, and ASEA has represented the unit since 1989. However, the correctional officers maintain a separate identity within that unit. PSEA also has demonstrated some employee support for a smaller, correctional unit. A key barrier to finding a new bargaining unit appropriate is the prohibition against fragmentation. The proposed unit, however, functions in some part as a separate unit within the GGU already.
The unit PSEA proposes to represent would include all correctional officers I, II, and III. We note that any correctional officers who are supervisors under 8 AAC 97.990(a)(5) could not be included in the unit. 8 AAC 97.090 prohibits combining supervisory with nonsupervisory employees in the same bargaining unit. The parties did not raise any challenges to the composition of the proposed unit on the basis of supervisory status, and the parties did not address the issue at the hearing. The issue was, however, suggested by the evidence. One CO III who testified, Hiller, stated he would not seek assistance from the shop steward assigned to his work site because the shop steward was a subordinate. CO III Palmquist testified that he was active in ASEA until he was promoted to sergeant. He believed his management responsibilities conflicted with service as a union steward. In addition, organizational charts in the record show that some of the COs III who are presently in the GGU have supervisory responsibility. See e.g., Exh. 233, at 10; Exh. 235, at 9. COs III can have fairly significant supervisory responsibilities. Exh. 240, at 6; Exh. 241, at 22. However, whether they meet the definition of "supervisory employee" in 8 AAC 97.990(a)(5) has not been established. See Munson v. State of Alaska, Decision & Order No. 206, at 27 (Sept. 20, 1996); Munson v. Alaska State Employees Assn, Decision & Order No. 207 (Sept. 23. 1996). Any COs III who meet that definition may not be included in the unit. Because the unit may not include supervisory employees under 8 AAC 97.090, the parties must address the issue before the determination of eligibility to vote in the election.
a. Community of interest.
Correctional officers have maintained a strong sense of community within the general government unit. They are all located organizationally within the Department of Corrections. The class series correctional officer is a large one, covering approximately 750 employees in the general government unit. There is a large volume of material in the record covering the evolution of the class series and the qualifications, training, and duties of its members. The class specifications, position descriptions, and recruitment bulletins demonstrate a strong similarity among correctional officers. Most employees in a job class will share a community of interest. The significance of this class series is that it has maintained a separate identity and is large enough to justify consideration as a separate unit.
The class series correctional officer (CO) has four classes: recruit and correctional officers I, II, and III. Exh. 2; Exhs. A, B, C, & D; Exh. 201. The recruit classification, formerly called "correctional officer trainee" applies while the CO is in training. Exh. 202. Completion of training qualifies a recruit for employment as a correctional officer I (CO I). Exh. 2, at 1; Exh. A, at 1; Exh. 201, at 1. The CO I is an entry level position. The CO I assists in supervising the movement of prisoners to and from work assignments, meals, recreation and housing units; guards prisoner work detail; books prisoners; operates a security control room; assists with maintaining order and discipline, including handling unruly and violent prisoners; conducts routine security checks; inspects prisoner quarters; counts prisoners; operates emergency equipment; assists in searches for escapees; and observes and records prisoner behavior.
Minimum qualifications for a CO I position include completion of the correctional officer recruit academy or equivalent program accredited by the Alaska Police Standards Council. The position also requires that the applicant pass a background check and psychological examination and that a physician certify that the applicant meets certain physical requirements. Exh. 2, at 4 & 5; Exh. B, at 2 & 3; Exh. 203, at 2 & 3. The background investigation includes inquiry into a candidates communication and analytical thinking skills, adaptability, assertiveness, vigilance, dependability, integrity, obedience, and self-control, among other things. Exh. 6, at 3; Exhs. 242-245.
The working level correctional officer is the correctional officer II. One year of experience as a CO I is needed to qualify as a CO II. Exh. 2, at 7; Exh. C, at 2.
The CO III position is distinguished by responsibility to serve in a lead or supervisory position. A CO III may serve as a shift supervisor or as an instructor at the staff development training center. A CO III may supervise prisoner transport officers and may be responsible for the operation of an institution when administrative supervisors are absent. To qualify as a CO III, an applicant must spend the equivalent of one year as a CO II. Exh. 2, at 10; Exh. D, at 2; Exh. 3; Exhs. 226, 227, 228, & 229.
The job duties of the CO classes have not changed materially since 1984. Both COs III Hiller and Main said the job had not changed substantially since their employment, in 1981 and 1983, respectively. The class specifications show continuity in the job duties. Compare Class Specification Correctional Officer III (1984), Exh. E, and Exh. 206 (1983), with Exh. 2, at 10 (1994); Exh. D, at 2 (1994); compare Class Specification Correctional Officer II 1983, Exh. F, with Exh. 2, at 6 (1994); Exh. C. Before 1978, the CO I was what is now classed as a CO II. The record includes a complete history of the CO I position. Exh. 204 (1991); Exh. 205 (1991); Exh. 207 (1978) (formerly correctional officer trainee); Exh. 208 (1973) (appears to be working level position, which is presently CO II); Exh. 209 (1972) (appears to be working level position, which is presently CO II); Exh. 210 (1970). The job responsibilities remain related to the security of institutionalized offenders. COs are trained at the Anchorage police
department training academy. CO Hiller stated that the training had not changed significantly since his initial employment by the State in 1981.
The few changes that were made are not significant. CO III Main, who is a trainer, states the training now is similar to the four-week training he received in 1983, although the program now is six weeks. Formerly work as a probation officer or youth counselor could substitute for one year as a correctional officer. Compare Exh. E, at 2, with Exh. 2, at 10; compare Exh. F, at 2, with Exh. 2, at 7. Another change has been certification by the Alaska Police Standards Council. Since February 9, 1991, COs are subject to requirements set by the Council. Exh. M, at 7.
Like the CO I position, the CO II position was reclassified in 1978. A CO II after 1978 performs in a position classified before that year as a CO III. Exh. 211 (1994); Exh. 212 (1991); Exh. 213 (1983); Exh. 214 (1979); Exh. 215 (1978) (formerly this position was a CO I); Exh. 216 (1972) (lead or supervisor CO, which is now a CO III); Exh. 217 (1972) (performing work of that is now a CO III); Exh. 218 (1970); Exh. 219 (supervising CO, undated). A history of the correctional officer III position appears in the record at Exh. 220 (1994); Exh. 221 (1991); Exh. 222 (1989); Exh. 223 (1984); Exh. 224 (1979); Exh. 225 (1978) (rewrite and title change from the CO II position).
The record includes position description questionnaires (PDQs) for a range of positions in the Department of Corrections, covering a number of institutions. Exh. 231 (CO I-II, State correctional center/annex); Exh. 232 (module officer/APS rover/control officer, Spring Creek ); Exh. 233 (transportation officer, State correctional center/annex); Exh. 234 (CO II, crew supervisor motor pool, Palmer Correctional Center); Exh. 235 (supply officer, Palmer Correctional Center); Exh. 236 (CO II, Fairbanks Correctional Center); Exh. 237 (CO III, compliance monitor, State correctional center/annex); Exh. 238 (CO III, Palmer Correctional Center); Exh. 239 (CO III, records sergeant Palmer Correctional Center); Exh. 240 (CO III, shift supervisor, Palmer Correctional Center); Exh. 241 (CO III, Cleary compliance supervisor, Lemon Creek Correctional Center).
CO III Hiller described the duties of a CO working in a pretrial unit as prisoner transportation and escort, prisoner discipline, collection of bail or fines for the courts, property checks, health and welfare checks, referral of intoxicated or injured prisoners to medical staff, response to prisoner needs, provision of prisoner restraint if needed, and arranging contact and attorney visits, among other things. CO III Robert Palmquist is a unit manager at the Spring Creek facility. He is responsible for approximately 400 general population inmates in two houses and for the segregation inmates when the segregation sergeant is absent. Palmquist compared the duties of the unit manager with the shift supervisor at the Spring Creek facility. The unit manager supervises 15 employees and is responsible for housing. The shift supervisor supervises 15 employees, and is responsible for security. Each has a post assignment and directs the work of the employees they supervise. Each reports to the assistant superintendent of operations. Formerly they assigned the posts but at the time of the hearing the institution was moving to a system of assignments and transfers that removed discretion from the unit manager and shift supervisor. CO II Sherrie Morrison-Burch has worked in both pretrial and correctional facilities and described her duties in both as supervising the inmates. This supervision includes insuring their safety, preventing their escape, and preventing assault. It also includes meeting the needs of the inmates for housing, food, and clothing and for library and classroom. She also assists them in meeting any court dates. The difference in working in a pretrial facility is there is more activity from the inmates before trial or sentencing. Exhs. 211, 212, & 213.
The record supports some community of interest between COs and other members of the general government unit. COs share certain job duties and working conditions with psychiatric nursing assistants I-IV, who also work in institutions and face risks from patients. Exhs. H, I, J, & K; Exh. 249. COs share with youth counselors I-III the responsibility to work with institutionalized offenders. Exh. 248. In addition, a correctional officer can move through a career track to a youth counselor. Exh. L, at 4. One prerequisite to become a youth counselor is a year in corrections, law enforcement, or another security program. Id., at 4; Exh. 248, at 4.
Experience in other GGU positions can lead to a career as a CO. For example, CO III Main began work for the State as a mental health aide and as a psychiatric nursing assistant. The career ladder from the correctional officer series is limited. CO III Main stated that his career advancement was limited to the position assistant superintendent.
The COs share a role in law enforcement with juvenile and adult probation officers in the GGU who all work with offenders. Exh. 250. State regulations address the minimum standards for probation, parole, and correctional officers. Included are a psychological screening evaluation, complete personal history, and a medical history report. 13 AAC 85.210(a)(7) and (c)(3), (5), and (6) (eff. Aug. 8, 1990). The probation officers appear to exercise more discretion on a daily basis and may work outside of institutions. See Exhs. G & N; Exh. 247. Probation officers, parole officers, and correctional officers are subject to the requirements set by the Alaska Police Standards Council. AS 18.65.220--.248 (eff. July 1, 1993, sec. 50, ch. 63 SLA 1993); 13 AAC 85.210--.220; Exh. 1; Exh. 7, at 2-9; Exh. 230; Exh. 247, at 7; Exh. M, at 7. This requirement is fairly recent and, as of the date of the hearing, the Council had certified 95 COs and 6 probation and parole officers.
COs interact mainly with other COs but also interact with other members of the GGU and other State bargaining units. One CO III stated he works with the shift supervisor CO, about 30 other COs, about 20 members of the labor, trades and craft unit, and clerical workers in the GGU. CO III Hiller and CO III Main work with clerical staff, probation and parole officers, mental health clinicians, physicians assistants, psychologists, drug and rehabilitation counselors, and education assistants. CO III Main also named nursing, maintenance, and food service staff. CO Morrison-Burch also works with other GGU employees on a regular basis. Main and Hiller interact most frequently with other correctional officers.
ASEA also compares the COs to the nonpublic safety investigator class series, Exh. 273, the environmental health officer series, Exh. 274, and fish and wildlife enforcement officers, Exh. 245. The similarity of these groups to COs is hard to see. The work duties and job site are more noteworthy for their differences.
The corrections officers also share a role in law enforcement with the State trooper series, who are represented in bargaining by the PSEA, although the role and responsibilities are very different. Exh. N; Exh. 246.
An earlier attempt to sever correctional officers included support personnel in the proposed unit. The State Labor Relations Agency found the combination of the COs with the support personnel to detract from the community of interest of the proposed unit. Alaska Correctional Employees Assn v. Alaska Public Employees Assn, Order & Decision No. 105 (May 14, 1987).
The COs in PSEAs proposed unit, on the other hand, share working conditions, mutual sympathy, and a common purpose. CO III Main stated that the COs do not want to be included with other positions and have wanted separate representation. One reason is that the COs could vote by block in a contract ratification election on issues important to them and be outvoted by other GGU members unaffected by those issues. Perhaps the best illustration of the community of interest of these employees is seen in the evidence of ASEAs efforts on behalf of correctional officers. A majority of the COs polled by ASEA, for example, supports a separate corrections chapter within the ASEAs GGU. ASEA has a standing corrections advisory committee. It conducted a summit conference dedicated to corrections issues, and it participates in AFSCMEs Corrections United. While this community of interest is shared in part with probation and parole officers, Exh. 8, it is very strong among the COs.
Although COs are in the general government unit, their wages and benefits differ in material ways from many GGU members. The GGU agreement addresses CO wages specifically. COs assigned to an institution or prisoner transportation unit are paid one step above the applicable salary schedule. Exh. 265, at 2 & 6. This difference compensates for the 40-hour workweek of COs. In addition, COs working rotating weekly shifts are in pay status 84 hours each two-week period and routinely earn overtime. Id., at 3. The 12-hour work schedule results in payment of overtime pay, a one-half hour paid meal break, and a swing shift differential for COs working the night shift. Id., at 4.
Unlike most members of the GGU, COs qualify for 20-year retirement under the Public Employment Retirement System in recognition of the high stresses on the job. AS 39.35.370(a)(2); 39.35.680(28).
COs work different hours than most other GGU members. The standard State work week is 37.5 hours. COs, on the other hand, can be assigned to a 40-hour work week or to a rotating 7 day, 12-hour, work schedule. CO III Hiller compared the rotating schedule to that worked by pipeline workers. The typical CO schedule requires a 12-hour work day, one week on and one week off, and alternating day and night shifts. Other GGU employees work irregular hours or on shifts. Aircraft rescue and fire fighting specialists work an alternate work week. Public Safety Employees Assn (Aircraft rescue and fire fighting specialists) v. State, Decision & Order No. 187, at 6. Youth counselors also may work nonstandard, rotating shifts. Exh. L, at 5, Exh. 248, at 5. Investigators work irregular hours. Exh. 273, at 3. However, none of the shifts is quite the same as the COs schedule.
d. Other working conditions.
Correctional officers share similar working conditions. These common working conditions are a factor in creating the community of interest among COs. Correctional officers are uniformed on the job. Exh. 4; Exh. 244. The behavior of COs is restricted even when they are not on the job. COs must adhere to a code of ethics and standards of conduct. Exh. 5; Exh. 243. The code prohibits "undue familiarity with offenders." Exh. 5, at 4; Exh. 243, at 4. "Undue familiarity" is defined as
Developing or attempting to develop, an intimate, personal, or financial relationship with a prisoner, probationer, or parolee, or otherwise failing to maintain an appropriate professional relationship.
Exh. 5, at 2; Exh. 243, at 2. Adherence to a code of ethics is also required of probation and parole officers. 13 AAC 85.230(a)(5) & (d).
COs share the dangers of working in correctional institutions. However, these hazards are similar to those faced by GGU members employed in the Alaska Psychiatric Institute and in youth offender facilities.
All COs are classified as Class (a)(1) for purposes of eligibility to strike. AS 23.40.200(b). They are therefore ineligible to strike and entitled to interest arbitration after impasse in collective bargaining negotiations. Approximately 2000 to 2500 employees in the GGU are Class (a)(1). Public Safety Employees Assn (Aircraft rescue and fire fighting specialists) v. State, Decision and Order No. 187, at 2. Resort to interest arbitration can result in different contract terms for the class (a)(1) employees in a unit. Exh. P.
e. History of collective bargaining.
The COs have been in the general government unit since the unit was formed. The unit is presently represented in bargaining by ASEA. ASEA promised to advocate for the COs and dedicated a seat on the executive board to the COs. The contracts that ASEA has negotiated have addressed some of the unique concerns of the COs.
f. Desires of the employees.
The desires of the employees can be difficult to assess when determining the appropriateness of a unit, but it must be taken into account. State v. Alaska State Employees Assn, AFSCME Local 52, AFL-CIO, Op. No. 4380 (Aug. 2, 1996), reversing Alaska State Employees Assn, AFSCME Local 52, AFL-CIO v. State, Decision & Order No. 164, at 20 (Sept. 27, 1993). PSEA filed sufficient interest cards to show that at the time it filed its petition at least 30 percent of the employees in the proposed unit desired representation by PSEA. The issue under AS 23.40.090, however, is the employees preference among the units being proposed, not the employees support for a particular union.
A number of COs testified at the hearing, and both the existing and the proposed units had their supporters. CO III Hiller testified that he had been active in two earlier petitions in 1987 and 1988 seeking to sever correctional officers from the GGU. According to Hiller, COs want to be separate. The particular union representing them is less important. COs III Main and Palmquist also support severance of the COs to a separate unit. Hiller states ASEA had promised some kind of a subchapter for COs, but it had not happened. CO II Sampson stated a majority of the COs polled supported a CO chapter within the GGU. CO II Morrison-Burch supports representation in a larger unit, believing there is strength in numbers.
In addition two employees filed letters with the Agency after the petition was posted in the work place. Both letters support maintaining the existing unit structure. Richard Sitbon filed a letter stating his preference for ASEA on March 20, 1995. Grayson B. Allbright, correctional officer II, filed an objection to the petition on March 3, 1995.
COs support both the existing and proposed unit structure. We conclude that PSEA has established sufficient employee support for the proposed unit to meet the requirement in AS 23.40.090. However, if all other factors taken into account to determine the unit under AS 23.40.090 were equal and employee support needed to be more precisely defined, this Agency could order a Globe election. In re City of Fairbanks, Dept of Labor, Labor Relations Agency, Order & Decision No. 84-1, at 25; Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 8 L.R.R.M.(BNA) 425 (1941).
g. Unnecessary fragmentation.
PSEA seeks separate representation for the COs, and fragmentation is an issue in this case. The State opposes the creation of a new bargaining unit. Its concern is not the identity of the representative but rather the number of bargaining units. It maintains that increasing the number of units would increase the administrative time dedicated to bargaining and contract enforcement and its costs. In this case finding a CO unit appropriate would increase the number of bargaining representatives in the correctional institutions from four to five. Exh. 251, at 5.
This Agency and its predecessor have been reluctant in the past to create new bargaining units, fearing a proliferation of units. International Bhd. of Elec. Workers v. Fairbanks North Star Borough School District, Decision & Order No. 153, at 20 (Mar. 24, 1993; Alaska Institutional Security Employees Assn v. Alaska Public Employees Assn, SLRA Order & Decision No. 112, at 8 (Mar. 22, 1988). But it has allowed the creation of a new unit in appropriate circumstances. In re Public Safety Employees Assn, Inc., SLRA Order & Decision No. 28 (Jan. 3, 1977). PSEA points out that only the GGU, labor, trades, and crafts unit, and supervisory unit would be larger than the proposed unit. PSEA Closing Argument, p. 30. The State is already negotiating separately for this group of employees in some areas. A number of provisions in the GGU bargaining agreement are unique to COs -- the rotating work schedule, pay provisions, and paid lunch breaks. Exh. 267, at 36. While ASEA by its organizational structure and bargaining practices responds to the separate identity of these employees, it does not allow this work group self-determination in that structure. Allowing that last step should not unduly or unreasonably disrupt the present bargaining scheme.
6. Has PSEA satisfied the requirements in 8 AAC 97.025(b) for severance of the correctional officers from the general government unit, taking into account Mallinckrodt Chemical Works?
Finding a unit of COs appropriate does not end the inquiry. PSEA must also prove that severance of the unit from the existing unit is justified. One commentator has stated, "The [NLRBs] reluctance to disrupt an established stable bargaining relationship will generally prevail over a claim that a separate craft unit is entitled to different representation." 1 Patrick Hardin, The Developing Labor Law 467 (3d ed. 1992). Because PSEA seeks to sever a group of employees from an existing unit, it must satisfy the requirements of 8 AAC 97.025(b) and state,
(1) why the employees in the proposed bargaining unit are not receiving adequate representation in the existing unit;
(2) whether the employees in the proposed bargaining unit are employed in jobs that have traditionally been represented in the same unit;
(3) why the employees in the proposed unit have a community of interest that is not identical with that of the employees in the existing unit;
(4) how long the employees in the proposed bargaining unit have been represented as part of the existing unit; and
(5) why the grant of the petition will not result in excessive fragmentation of the existing bargaining unit.
a. Adequacy of representation.
The PSEA argues that "ASEA is incapable of adequately representing this large minority with a distinct character that has a separate professional status." PSEA Closing Argument, p. 18. The PSEAs support for this indictment is (1) two COs who do not like the change from annual and sick leave to personal leave in the collective bargaining agreement and one CO who likes the change but believes other COs may not; (2) the absence of a transfer policy or seniority bidding system in the GGU agreement; and (3) the loss at some time in the past of pyramiding leave or "triple time." Another more compelling concern is that the entire GGU votes on issues applying only to the COs.
ASEA rebutted evidence about the effectiveness of its representation. It showed that the change to personal leave was supported in a survey of correctional officers. It showed substantial efforts to identify and pursue matters of concern to COs, such as the rotating shifts. The fact that ASEA may not have been completely successful in bargaining on all issues does not reflect necessarily on its adequacy as a representative. There is no evidence in the record supporting an inference that State management would respond any differently to another bargaining representative advocating these same issues. What is important is that ASEA recognized the importance of the COs concerns and expended considerable effort to address them in the agreement.
Not all of the concerns of the COs are unique to the COs. Transfer, seniority, and health benefits are concerns shared by many members of the GGU. Compare Exh. 267, at 12 (transfer) & 23 (health benefits) with Exh. 267, at 36 (CO terms). ASEAs special efforts on behalf of COs in bargaining were described by COs Palmquist, Damron and Sampson and business agent O'Connell. For example, at the biennial convention in 1992, the ASEA adopted a resolution to negotiate a separate article for COs. Exh. 275. The most recent agreement contains Article 26, correctional officers, which contains wage, hourly schedule, and personal leave provisions applying solely to COs. Exh. 267, at 36. The earlier agreement addressed the specific issues affecting COs by letter of agreement. Exh. 265, at 2.
ASEA and the State in the agreement established a labor management committee on corrections:
Within sixty days following the effective date of this Agreement, the parties shall meet to establish a statewide labor-management committee on Corrections pursuant to the provisions of Article 7. The committee shall be composed of no more than five(5) representatives of the Employer and no more than five (5) representatives of the Union. Additional individuals may be included in particular labor-management meetings by mutual agreement. The topic of a transfer policy for Correctional Officers shall be a subject of the committee's first meeting.
Exh. O, at 2 & 3; Exh. 266, at 3; see also Exh. 267, at 64 (July 1, 1996--June 30, 1999 agreement). CO Palmquist states ASEA and the State agreed to a labor management committee in 1990 as well.
CO Hiller was very concerned that only COs should vote to ratify provisions in the agreement affecting only COs. ASEA has under study the creation of a chapter in ASEA based on the adult and youth corrections job classifications. Exh. 272.
ASEA is also active in grievance and contract enforcement issues on behalf of COs. It does this by training shop stewards who work at the Department of Corrections. Business agents Dave Burdette and Charles O'Connell have trained shop stewards. ASEA also has assigned a large number of its contractually allotted stewards to the Department of Corrections. If shop stewards were divided evenly among the departments, Corrections would have 27 stewards. Instead, it has 38 stewards.
ASEA provided evidence that it has filed many grievances for the Department of Corrections employees. Exh. 251, at 5; Exh. 252. For example, employees of the Department of Corrections between 1990-1994 provided 31 percent of the total number of arbitrations ASEA handled statewide and 25 percent of the grievances handled in ASEAs Anchorage office. Exh. 253. On the other hand COs are only 8 percent of the work force. ASEA business agent David Burdette stated that the Department of Corrections comprised 80 percent of his caseload. His first year assigned to Corrections, Burdette filed 225 grievances on behalf of Corrections employees of which he estimated 90 percent were for COs. Business agent Charles O'Connell testified about the number of grievances he handled and, after the hearing, corrected the number to 32 arbitrations, losing only 7. C. O'Connell, letter to J. DeYoung (July 14, 1995). CO II Morrison-Burch and CO III Joe Rogers described the support they received from ASEA in their employment disputes.
It is also significant that COs are active in the ASEA and participate in their representation. One of the seats on the 10 member executive board must be a correctional officer. CO II Gary Sampson, at the Spring Creek facility, is the CO member of the executive board. COs are not restricted from running for the remaining seats, and the executive board has had two COs in the past. COs are active in the ASEA chapters. ASEA is divided into geographic regions called chapters. At the time of the hearing, COs were presidents of the Cook Inlet, Seward, Mat-Su, Nome and Bethel chapters. Four or five COs participated on the first 30-member ASEA bargaining team that negotiated the 1990-1993 agreement. A CO was one of five negotiators on the team negotiating the interim and 1996-1999 agreements.
AFSCME nationally represents 60,000 corrections officers in mixed units. ASEA participates in AFSCMEs organization Corrections United. Corrections United is active on behalf of COs. It issues public reports, posters, and newsletters. For example, it has prepared a videotape "Mandate for Change and Lucasville: System under Siege," Exh. 259, and it issued the report, "Mandate for Change: Empowerment; Dignity; Skill; Safety; Security." Exh. 260 (reporting on the founding meeting of AFSCME's Corrections United in October of 1993). It also issues literature promoting AFSCME to COs. For example, it issued a publication, "Nobody's Tougher," recounting the benefits AFSCME has obtained for member COs. Exh. 261. See also Exh. 262.
ASEA created an advisory committee in 1992 to focus on CO issues. It conducted with AFSCME a Corrections United Summit Conference on July 23-25, 1995. Its purpose was
To allow the Corrections Committee to receive input and to provide CO's, PO's, and Youth Counselors with accurate information. The agenda includes privatization, contracting out, and related political action; the feasibility of a separate Corrections Chapter within ASEA; and a transfer policy for institutional CO's to be used by the proposed Corrections Labor Management Committee.
Exh. 8. Delegates were nominated and elected by ASEA "dues-paying" COs, probation officers, and youth counselors. Id.
ASEA and AFSCME are active in increasing public awareness of correctional officers. For example, the week of May 7-13, 1995, was declared "National Correctional Officers Week" in Alaska by Governor Tony Knowles to "encourage all Alaskans to recognize the contribution correctional officers make in helping to maintain an orderly society." Exh. 263. ASEA publicized National Correctional Officers Week. Exh. 264.
The record strongly supports ASEAs skill as an advocate for COs within a large and diverse bargaining unit. The one deficiency in the existing unit structure, however, is an important one: the dilution of COs voting strength at ratification. This deficiency in the unit structure is one we believe should be significant in evaluating the appropriateness of severance of these employees and one reason for concluding that severance is appropriate.
b. Tradition of representation.
PSEA argues that the corrections industry has an emerging tradition of separate representation. PSEA compares COs to guards, who may not be combined in bargaining units with nonguard employees under the National Labor Relations Act, 29 U.S.C.A. § 159(b)(3) (West 1996 ed.) PSEA Closing Argument, p. 20. However, guards in the private sector protect the employer and its property. This may include protecting the employer from the employees, particularly during a work stoppage. There is a strong conflict between the interests of guards and nonguard employees. Correctional officers, on the other hand, do not serve the same function or create the same conflict of interest as private sector guards.
Nevertheless, there is substantial support for PSEAs assertion that COs are gaining recognition as a separate group of professional employees. In Alaska Correctional Employees Assn v. Alaska Public Employees Assn, SLRA Order & Decision No. 105, at 8, the absence of a separate tradition of representation was an important factor in the dismissal of an earlier petition to sever COs. PSEA, however, has established that separate representation is common and possibly the norm, citing cases in California, Connecticut, Florida, and Hawaii, among others. California, for example, recognizes a separate corrections unit. In re California and California State Police Officers Assn and California Union of Safety Employees, 12 Pub. Empt. Rel. Rptr. for Calif. P 19048, at 7 (Mar. 15, 1988). Florida by rule making recognizes a State unit of corrections officers and by decision recognizes separate city corrections units. Fla. Pub. Empt. Rel. Commn Rule 38D-17.23(1); In re Petition of Florida Police Benevolent Ass'n, Inc., 10 Fla. Pub. Empl. Rptr. P 15073 (1984); Fraternal Order of Police v. Jacksonville & Florida Public Employees Council 79, 14 Fla. Pub. Empl. Rptr. P 19139 (May 19, 1988). Hawaii by legislation recognizes a separate unit for institutional, health, and correctional workers. Haw. Rev. Stat. § 89-6(a)(10) (1996). Minnesota law provides for a correctional guards unit. Minn. Stat. § 179A.10.2(8) (1996). Ohio recognizes separate CO units. In re Fraternal Order of Police & Erie County Sheriff, 11 Oh. Pub. Employee Rptr. P 21, 1325 (April 29, 1994). Wisconsin recognizes by statute a bargaining unit for "security and public safety" employees. Wis. Stat. Ann. § 111.825(1) (1996).
In addition, other states have allowed correctional officers to be severed from larger bargaining units. In re Petition of Florida Police Benevolent Ass'n, Inc., 10 Fla. Pub. Empl. Rptr. P 15073. Vermont allowed COs to sever despite statutory language requiring consideration of overfragmentation of state collective bargaining units. Guide to Vermont Labor Relations Statutes (1995), citing Petition of VSEA re. Separate Bargaining Unit for Community Correction Center Employees, 5 Vt. Lab. Re. Bd. 82 (1982), and 21 Vt. Stat. Ann. 1724(c)(2) (1995).
c. Community of interest.
The evidence supports finding a community of COs and this community is strong even within the larger general government unit. See discussion, supra, at sections 5(a), page 12, and 6(a), page 21.
d. Length of time in unit.
COs have been in the GGU since its creation in 1973. In re State representation petitions, SLRA Order & Decision No. 1, at 9-15 (Mar. 1, 1973).
e. Excessive fragmentation.
While granting this petition would create an additional bargaining unit, the evidence shows that the State and ASEA negotiate for this work group separately within the larger unit. See discussion, supra, at section 5(g), page 18. Recognition of a separate CO bargaining unit should not result in excessive fragmentation.
f. Mallinckrodt Chemical Works.
This Agency also takes into account the factors that the NLRB reviews in craft severance cases. Mallinckrodt Chemical Works, 162 N.L.R.B. No. 48, 64 L.R.R.M.(BNA) 1011, 1016 (1966):
1. Whether or not the proposed unit consists of a distinct and homogeneous group of skilled journeymen craftsmen performing the functions of their craft on a nonrepetitive basis, or of employees constituting a functionally distinct department, working in trades or occupations for which a tradition of separate representation exists.
2. The history of collective bargaining of the employees sought and at the plant involved, and at other plants of the employer, with emphasis on whether the existing patterns of bargaining are productive of stability in labor relations, and whether such stability will be unduly disrupted by the destruction of the existing patterns of representation.
3. The extent to which the employees in the proposed unit have established and maintained their separate identity during the period of inclusion in a broader unit, and the extent of their participation or lack of participation in the establishment and maintenance of the existing pattern of representation and the prior opportunities, if any, afforded them to obtain separate representation.
4. The history and pattern of collective bargaining in the industry involved.
5. The degree of integration of the employer's production processes, including the extent to which the continued normal operation of the production processes is dependent upon the performance of the assigned functions of the employees in the proposed unit.
6. The qualifications of the union seeking to "carve out" a separate unit, including that union's experience in representing employees like those involved in the severance action.
Public Safety Employees Assn (Weigh station operators) v. State of Alaska, Department of Public Safety, Decision & Order No. 201, at 14 (April 4, 1996); International Bhd. of Elec. Workers v. Fairbanks North Star Bor. Schl. Dist., Decision & Order No. 153, at 3-4.
(1) Distinct and homogenous group. One of the Mallinckrodt factors is the extent to which the employees in the proposed unit have established and maintained a separate identity. Correctional officers share a community of interest and comprise a distinct and homogenous group. The strong community of interest is manifest in the record, not only in the similarity of the job duties and working conditions, but in the sense of mutual purpose and identity that this profession shares. See Exh. 259. This community of interest is shown by ASEAs consideration of a separate CO chapter and the separate provisions covering COs in the GGU agreement.
(2) History of bargaining. This petition is the third effort of COs to sever from the GGU and form a separate unit. The first was In Alaska Correctional Employees Assn v. Alaska Public Employees Ass'n, Order & Decision No. 105, Exh. 254. In that case the labor relations agency applied the Mallinckrodt factors and 2 AAC 10.020 and concluded that "no justification exists to distinguish Department of Corrections employees from other employees represented by APEA through a separate bargaining unit." Id., at 9. A second attempt failed in Alaska Institutional Security Employees Ass'n v. Alaska State Employees Ass'n, Order & Decision No. 112, at 8-9, Exh. 255.
As a general rule this Agency follows the principles and policies announced in earlier cases. See Public Safety Employees Ass'n (F.W.E.O.) v. State, Decision & Order No. 186. In that case we found that, while res judicata did not apply, we saw no reason to depart from an earlier decision addressing a petition by the fish and wildlife enforcement officers to sever from the general government unit. In this case, however, we find the evidence justifies a departure from the decisions of the State Labor Relations Agency in Alaska Correctional Employees Assn v. Alaska Public Employees Ass'n, Order & Decision No. 105, Exh. 254, and Alaska Institutional Security Employees Ass'n v. Alaska State Employees Ass'n, Order & Decision No. 112, Exh. 255.
(3) History in unit and potential for disruption. The NLRB under Mallinckrodt weighs this factor heavily. Public Safety Employees Assn (Weigh station operators) v. State of Alaska, Department of Public Safety, Decision & Order No. 201, at 16. COs have been in the GGU since its formation in 1973. During that time they have tried unsuccessfully on two occasions to sever from the unit. Severing this group should not be disruptive because it has been accorded some recognition as a subgroup of the GGU by ASEA and the State.
(4) Maintaining a separate identity. We have found that COs have maintained a separate identity within the larger unit. See discussion, supra, at section 3(a), page 12.
(5) History in the industry. This group of employees has a tradition of separate representation in bargaining. See discussion, supra, at section 6(b), page 23.
(6) Production processes. This factor is concerned with the integration in the employers manufacturing processes of the craft to be severed. The analogy to the public sector and correctional institutions is not very strong. However, we do note that COs are only a part, but a significant part, of the States system for securing offenders from the public. All of the witnesses testified to the work of a number of groups, represented in four bargaining units, in the correctional institutions, ranging from COs to maintenance staff in the labor, trades and craft unit, to education and rehabilitation professionals and clerical workers in the GGU.
(7) Qualifications of petitioning labor organization. In past severance petitions, this Agency has concluded that PSEAs history of representation of its public safety unit demonstrates its qualifications to represent whatever group it has sought to represent. See e.g., Public Safety Employees Assn (Park rangers) v. State, Decision & Order No. 209, at 19. In the case of the COs, however, we have reservations about PSEAs qualifications. The evidence shows that this group of employees makes high demands of its representative at the bargaining table and in contract enforcement.
ASEA has substantial resources at its disposal and substantial expertise in representing COs. ASEA has represented the COs in the GGU since 1987. It is affiliated with AFSCME, which has substantial experience in representing COs and has invested substantial money and energy in that representation. For example, it is working on the issue of the privatization of corrections. In contrast, PSEA is not affiliated with a national or international labor organization. Its organizing drive among GGU members, represented in bargaining by an AFL-CIO affiliate, cost PSEA its affiliation with IUPA and any future association with an AFL-CIO affiliate. Exhs. 256 & 257. Because a correctional officers unit would be much smaller than the GGU and PSEA does not have an affiliate to rely upon, it is unlikely that PSEA will have the resources that ASEA has been able to commit to the representation of the COs. On the other hand, PSEA did have the resources to wage an organizational campaign for GGU members.
In addition, PSEA does not have any history representing COs, nor has it demonstrated any special knowledge or expertise. But the COs do have a common purpose with the members of PSEAs existing public safety unit. Some CO concerns mirror those of peace officers, such as dangerous working conditions. However, PSEA has a history of representation in this State since 1978. PSEA President Keith Perrin stated,
[The correctional officers] are more closely aligned with what we do than the rest of the group they now belong. We are in the business of getting bad guys off the street; they are in the business of keeping them off the street. They work shift work, are in the 20 year retirement system and are class I employees.
Exh. 258, at 2. See also Wis. Stat. Ann. § 111.825(1)(joining law enforcement and correctional officers in the same bargaining unit).
Although we have reservations about PSEAs ability to duplicate ASEAs expertise in CO issues, we conclude that PSEA is sufficiently qualified to represent the COs.
Conclusions of Law
1. The State of Alaska is a public employer under AS 23.40.250(7). The Public Safety Employees Association and Alaska State Employees Association are employee organizations under AS 23.40.250(5). This Agency has jurisdiction under AS 23.40.090 and AS 23.40.100 to consider this case.
2. PSEA has the burden to prove the elements of its case by a preponderance of the evidence. 8 AAC 97.350(f).
3. AS 23.40.100(e) does not bar consideration of PSEAs petition in this case.
4. The showing of interest in support of a representation petition may not be attacked on the basis that the petitioning labor organization does not enjoy the continuing support of 30 percent of the proposed unit.
5. 8 AAC 97.080(d) protects the confidentiality of employee interest cards, whether they express support or its absence.
6. Based on such factors as community of interest, wages, hours, and other working conditions of the employees involved, the history of collective bargaining, the desires of the employees, and the prohibition against unnecessary fragmentation, a unit of correctional officers is an appropriate unit.
7. While PSEA has not demonstrated any inadequacy in ASEAs representation of COs in the GGU, it has shown COs maintain a separate identity within the GGU except in one important respect -- self determination. Weighing the factors in 8 AAC 97.025(b), on balance we conclude that PSEA has established the requirements in that regulation and justified severing the COs from the general government unit.
8. The factors set forth in Mallinckrodt Chemical Works, 162 N.L.R.B. No. 48, 64 L.R.R.M.(BNA) at 1016, strongly support the conclusion that correctional officers are a craft that would be more appropriately represented in a separate unit.
9. Under 8 AAC 97.090, COs who meet the definition of "supervisory employee" in 8 AAC 97.990(a)(5) must be excluded from a unit of nonsupervisory COs under 8 AAC 97.090(1).
1. The petition of the Public Safety Employees Association to sever the correctional officers from the general government unit and create a separate correctional officers bargaining unit is GRANTED.
2. The unit is described as follows:
Included: All corrections officers I, II, and III;
Excluded: Any supervisory and confidential employees under 8 AAC 97.990 and all other State employees.
3. If the parties cannot agree to the composition of the unit as defined in paragraph 2, this agency will hear the question of unit composition on an expedited basis;
4. After any questions about the composition of the unit are resolved by agreement or agency decision, the petition should proceed to an election under AS 23.40.100, 8 AAC 97.025, and 8 AAC 97.030.
5. The ballot choices are Public Safety Employees Association; Alaska State Employees Association, AFSCME Local 52, AFL-CIO; and no bargaining representative.
6. The State of Alaska is ordered to post a notice of this decision and order at all work sites where members of the bargaining unit affected by the decision and order are employed or, alternatively, serve each employee affected personally. 8 AAC 97.460.
ALASKA LABOR RELATIONS AGENCY
Blair E. Schad, Board Member
Robert A. Doyle, Board Member
Karen J. Mahurin, Board Member
An Agency decision and order may be appealed through proceedings in superior court 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 the Decision and Order in the matter of PUBLIC SAFETY EMPLOYEES ASSOCIATION v. STATE OF ALASKA, DEPARTMENT OF CORRECTIONS AND ALASKA STATE EMPLOYEES ASSOCIATION, AFSCME LOCAL 52, AFL-CIO, CASE NO. 95-379-RD, dated and filed in the office of the Alaska Labor Relations Agency in Anchorage, Alaska, this 16th day of January, 1997.
Victoria D. Scates
Administrative Clerk III
This is to certify that on the day of January, 1997, a true and correct copy of the foregoing was mailed, postage prepaid to
Kent Durand, State
James Gasper, APEA
Don Clocksin, ASEA
1Public Safety Employees Assn (Park rangers) v. State, Decision & Order No. 209 (Nov. 13, 1996), Public Safety Employees Assn (Weigh station operators) v. State, Decision & Order No. 201 (April 4, 1996), Public Safety Employees Assn (Aircraft rescue fire fighting specialists) v. State, Decision & Order No. 187 (May 25, 1995), affirmed case no. 3AN-95-5208 CI (Super. Ct., October 14, 1996); Public Safety Employees Assn (Fish wildlife enforcement officer) v. State, Decision & Order No. 186 (May 25, 1995).