ALASKA LABOR RELATIONS AGENCY
3301 EAGLE STREET, SUITE 208
P.O. BOX 107026
ANCHORAGE, ALASKA 99510-7026
(907) 269-4895
Fax (907) 269-4898

STATE OF ALASKA, DEPARTMENT	)
OF ADMINISTRATION,		)
(Francis Keenan, PCN 25-0462),	)
	Petitioner,		)
				)
vs. 			)
				)
ALASKA PUBLIC EMPLOYEES ASSíN/	)
AFT, AFL-CIO,			)
				)
	Respondent,		)
				)
and				)
ALASKA STATE EMPLOYEES ASSíN/	)
AFSCME LOCAL 52, AFL-CIO,	)
	Intervenor. 	)
________________________________)
CASE NO. 96-442-UC (96-454-UC Consol.)

DECISION AND ORDER NO. 222

Digest: The bargaining unit placement of the engineering associate position in the Department of Transportation & Public Facilities, PCN 25-0462, is appropriately in the supervisory bargaining unit represented by the Alaska Public Employees Association/AFT, AFL-CIO.

DECISION

Statement of the Case

On September 29, 1995, the State of Alaska filed this petition to clarify the bargaining unit status of an engineering associate position in the Department of Transportation & Public Facilities. This position has been in the supervisory unit. After the State had advised of its intent to transfer the position to the general government unit, the Alaska Public Employees Association/AFT, AFL-CIO (APEA) objected. On October 10, 1995, Alfred L. Tamagni, Chair of the Alaska Labor Relations Agency, delegated the authority to hear the case to the hearing officer.

Intervenor ASEA moved to stay the petition on December 18, 1995, and the hearing officer denied the motion on January 4, 1996.1 The case was consolidated for hearing with 95-425-UC, 96-454-UC, and 96-463-UC, and heard on April 2 and 4, 1996. The record closed on April 4, 1996.

On June 18, 1997, the Agency amended the panel assignment to substitute board member Raymond P. Smith for member Karen J. Mahurin.

Panel: Alfred L. Tamagni, Sr., chair, and board members Robert A. Doyle and Raymond P. Smith, participating after review of the record.

Appearances: Art Chance, labor relations specialist, for petitioner State of Alaska; Dennis Geary, business agent, for respondent Alaska Public Employees Association/AFT, AFL-CIO; and Stan Hafferman, business agent, for intervenor Alaska State Employees Association/AFSCME Local 52, AFL-CIO (ASEA).2

Procedure in this case is governed by 8 AAC 97.330--8 AAC 97.480. Hearing officer Jean Ward presided.

Issue

1. Is the appropriate unit for the engineering associate position, PCN 25-0462, in the Department of Transportation & Public Facilities, the supervisory unit or the general government unit?3

Summary of the Evidence

A. Exhibits.

The parties agreed to the admission of exhibit G and the materials in the case file on the issue of the unit placement of PCN 25-0462: G. DOT & PF, organizational chart, central region, Design and Construction Public Facilities Services Branch (undated).

B. Testimony.

Francis Keenan, the incumbent; Jerry Watkins; and Roger David Head, public facilities chief, testified.

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 Alaska State Employees Association/AFSCME Local 52, AFL-CIO (ASEA) is the recognized bargaining representative of the general government unit of State of Alaska employees.

2. Alaska Public Employees Association/AFT, AFL-CIO (APEA) is the recognized bargaining representative of the supervisory unit of State of Alaska employees.

3. The position engineering associate position PCN 25-0462 is located in the central region office of the design and construction section of the Department of Transportation and Public Facilities (DOT & PF) and is in the supervisory unit.

4. The engineering associate position at issue was formerly a project manager I. The State reclassified the position to an engineering associate. J. Dailey, memorandum to J. Ignell (Aug. 16, 1994). Project managers are responsible for the overall management of public facility capital improvement projects and have substantial responsibility. R. Head, memorandum to D. Keith (Jan. 24, 1995).

5. The PDQ shows that, as a project manager I, PCN 25-0462 directly supervised two engineering associate II positions. PDQ (Oct. 27, 1993). A more recent organizational chart, on the other hand, shows that the position as an engineering associate does not have employees directly assigned to it but draws on a pool of subordinate staff. Exh. G.

6. Francis Keenan, who occupies PCN 25-0462, states that his duties have not changed since the position was reclassified.

7. Keenanís direct supervisor is C. Birch, who is supervised by the chief of public facilities services, Roger Head. Id.

8. On January 23, 1995, after the reclassification, Keenan completed a supervisory questionnaire in which he assessed his supervisory duties.

9. Keenan assessed his authority to employ, that is, to appoint, promote, or transfer, and his authority to discipline, as the authority to make a recommendation to his supervisor who makes the final decision. Supervisory responsibilities questionnaire PCN 25-0462 (Jan. 25, 1995).

10. Keenan assessed his authority to decide first level grievances as "I decide what personnel actions to take. My supervisor may change or overturn my action." Id., at 1-2.

11. Keenan is the Stateís first level response when a grievance is filed by a member of the work unit he supervises, and according to Head, Keenan has full authority to adjudicate first level grievances.

12. Keenan has full authority to act in the interest of the state in the area of grievance adjudication.

13. Keenanís authority to adjudicate grievances is not merely routine, but requires the exercise of independent judgment when the opportunity arises, as demonstrated by Keenanís handling of a grievance filed by a general government unit employee who was employed on the airport project.

14. Keenanís level of authority in the area of employing shows that he puts work teams together but has little opportunity to actually appoint, promote, or transfer. Keenan determines how many employees he will need on a particular project. Keenan determines whom he wants from a pool of employees and makes a request for those particular employees. The chief of public facilities services, Roger Head, customarily honors Keenanís request. If there are no pool employees available, Keenan looks elsewhere in DOT & PF to try to borrow the necessary employees. He negotiates with other section heads to determine such things as the length of time that he will be able to borrow the employees. These actions show Keenan can assign or direct work but do not demonstrate authority to appoint, promote or transfer.

15. Keenan did have one opportunity to exercise employing authority. Shortly before Keenanís position was reclassified, he had been unable to obtain an employee from the pool or to borrow one. He appointed an employee after developing the requirements for the position, obtaining permission to fill the position, conducting the interviews, and recommending the candidate to hire. Keenanís recommendation was followed.

16. This appointment would support a finding that Keenan had employing authority if it had occurred after his reclassification. Because it did not and no other evidence supports a finding that Keenan has employing authority, we find that Keenan does not have the authority to act or to effectively recommend action in the area of employing.

17. Keenanís level of disciplinary authority is higher. Keenan believes, and Head confirmed, that Keenan can write disciplinary memoranda without consulting anyone and recommend dismissal. According to Head, Keenan has full authority to reprimand and can suspend if immediate action is required without consulting Head. Head would expect Keenan to inform his immediate supervisor and Head before discharging an employee, but Head would accept Keenanís recommendation.

18. Keenan has had few opportunities to exercise this disciplinary authority. The one opportunity arose when he was a project manager. Keenan issued a written warning to an employee who failed to come to work on time. He did not consult anyone else before taking this action. Further action was not required because the employee corrected the problem after Keenan counseled him and issued the written warning.

19. On the basis of Head and Keenanís testimony about Keenanís level of authority, we find that Keenan has the authority to act or to effectively recommend action in the interest of the State in the area of discipline.

20. The authority to discipline is not merely routine, but requires the exercise of independent judgment, as shown by Keenanís statements, supported by Head, that Keenan would handle a serious disciplinary matter by investigating the infraction, preparing findings and a justification, and recommending the action to be taken to his supervisor.

21. At the time of the hearing Keenan did not have any employees under his direction and control. The reason is that he is responsible for both the design and construction phases of projects, and he needs pool employees during only the construction phase. Because he is assigned multiple projects, he may have projects in both the design and construction phases.

22. During 1994 and 1995, Keenan had at least one employee under his span of control, and depending on the projects, he has had as many as 15 employees, although the number customarily is smaller.

23. It was unusual for Keenan not to have employees under his span of control. Because Keenan was in the design phase of his projects at the time of the hearing, he was not supervising any employees, which had not happened during the previous two years.

24. Keenan appears to prefer to remain in the supervisory unit.

Conclusions of Law

1. The State of Alaska is a public employer under AS 23.40.250(7), and the Alaska State Employees Association/AFSCME Local 52, AFL-CIO, and the Alaska Public Employees Association/AFT, AFL-CIO are organizations under AS 23.40.250(5). This Agency has jurisdiction under AS 23.40.090 to consider this matter.

2. The State as the petitioner, has the burden to prove each element of its case by a preponderance of the evidence. 8 AAC 97.350(f).

3. Under 8 AAC 97.090 a bargaining unit of State employees may not properly combine supervisory personnel with nonsupervisory personnel.

4. We have found a separate supervisory unit to be the appropriate unit for State employees who meet the definition of "supervisory employee" in 8 AAC 97.990(a)(5). State v. Alaska State Employees Assín/AFSCME Local 52, AFL-CIO, Decision & Order No. 219, at 15-17 (May 27, 1997) appeal pending No. 3 AN 95-9083 CI (Super. Ct., filed June 15, 1997) .

5. This petition is not clear cut and posed several close questions. Keenan, the incumbent in PCN 25-0462, draws on a pool of employees and these employees may change. He may not always be in a position to supervise because he supervises employees during the construction phase of a project but not during the design phase. On the other hand, Keenan has been in the supervisory unit and the State must carry the burden to prove that he is not a supervisory employee under 8 AAC 97.990(a)(5) and is appropriately a member of the general government unit.

6. Whether Keenan has authority to act or to recommend action in the interest of the State in the area of employing presents a close call. On the one hand, the employees that he supervises have already been hired and are moved routinely from project to project. Moving employees about in this fashion does not constitute hiring, transferring, laying off, or recalling, which can constitute employing under in 8 AAC 97.990(a)(5). On balance we find the one instance when he appointed an employee, which occurred before his reclassification, insufficient to outweigh the evidence in the supervisory responsibilities questionnaire that he does not have this authority. We conclude that the State satisfied its burden to show that Keenan does not have sufficient authority to act or effectively recommend action in the employing function in 8 AAC 97.990(a)(5).

7. On the other hand, the State has not demonstrated that Keenan lacks supervisory authority to act in the interest of the State in the areas of discipline and grievance adjudication.

8. We have found that Keenan has authority to act in the interest of the State in the areas of discipline and grievance adjudication, two supervisory functions. Because under the definition of "supervisory employee" in 8 AAC 97.990(a)(5) authority in only one supervisory function is required, we conclude PCN 25-0462 is a "supervisory employee."

9. This supervisory responsibility provides a greater community of interest with the supervisory unit than the general government unit.

10. The community of interest, the history of placement in the supervisory unit, and the preference of the incumbent to be in the supervisory unit, support the conclusion that PCN 25-0462 is appropriately in the supervisory unit.

11. We conclude that PCN 25-0462 is appropriately in the supervisory unit.

ORDER

1. The petition of the State of Alaska State to declare the engineering associate PCN 25-0462 appropriately in the general government unit is DENIED;

2. The engineering associate PCN 25-0462 is appropriately in the supervisory unit; and

3. 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

Alfred L. Tamagni Sr., Chair

Robert A. Doyle, Board Member

Raymond P. Smith, Board Member

APPEAL PROCEDURES

This order is the final decision of this Agency. Judicial review may be obtained by filing an appeal under Appellate Rule 602(a)(2). Any appeal must be taken within 30 days from the date of filing or distribution of this decision.

CERTIFICATION

I hereby certify that the foregoing is a full, true and correct copy of the order in the matter of STATE OF ALASKA, DEPíT OF ADMINISTRATION, (Francis Keenan, PCN 25-0462) v. ALASKA PUBLIC EMPLOYEES ASSíN/AFT, AFL-CIO and ALASKA STATE EMPLOYEES ASSíN/AFSCME LOCAL 52, AFL-CIO, Case No. 96-442-UC (96-454-UC Consol.), dated and filed in the office of the Alaska Labor Relations Agency in Anchorage, Alaska, this 8th day of August, 1997.

Cindy Teter

Administrative Clerk III

This is to certify that on the 8th day of August, 1997, a true and correct copy of the foregoing was mailed, postage prepaid to

Stan Hafferman, ASEA

Kent Durand, State

Dennis Geary, APEA

Signature

1The State of Alaska objected to the petition, apparently in error, on February 15, 1996. On February 20, 1996, the State withdrew its objection.

2At the hearing, ASEAís representative announced that ASEA was withdrawing as an intervenor in this case. The State objected to ASEAís withdrawal. We see no basis for compelling an intervenor to participate at the hearing and allow the withdrawal.

3ASEA filed numerous motions, which it withdrew at the hearing when it withdrew as an intervenor in the case. Therefore, they will not be addressed.