CASE NO. ALRA 91-004-ULP

DEPARTMENT OF LABOR
ALASKA LABOR RELATIONS AGENCY
P.O. BOX 107026
ANCHORAGE, ALASKA 99510-7026
(907) 264-2587
Fax (907) 264-2591

CASE NO. ALRA 91-004-ULP

DECISION AND ORDER No. 127

ON RESPONDENT'S MOTION RE APPLICATION OF PERA TO EXISTING CONTRACT

Respondent Matanuska-Susitna Borough School District has raised a preliminary matter about the application of the Public Employment Relations Act to a collective bargaining agreement predating the effective date of the Act. The agreement runs between July 1. 1989 -- June 30, 1992, and PERA first applied to the school districts on June 22, 1990. Ch. 180 SLA 1990. The question posed by the District is, if terms in the agreement and PERA conflict, which prevail. The question arises from a conflict between the definitions of "confidential employees" in the agreement and under PERA. The District's position is that the agreement prevails because to find that PERA modified the agreement would be an unconstitutional impairment of contract. Complainant Classified Employees' Association opposes the District's motion by arguing it is not necessary to decide whether the agreement or PERA controls because the two definitions can be harmonized and construed to avoid any conflict.

We hold that the parties' agreement and the District's Board Labor Relations Policy must be applied and interpreted in accordance with PERA. We reach this result upon our construction of that agreement and policy. Because we perceive no conflict between PERA and the agreement, we do not reach the question which would control in the event of a conflict.

DISCUSSION

The Classified Employees Association (CEA) filed the unfair labor practice complaint in this case because the District reclassified certain District employees from members of the CEA bargaining unit to confidential employees exempt from collective bargaining. CEA's complaint sought an order returning the excluded employees to the bargaining unit and compelling the District to file a unit clarification petition before making any changes to the unit in the future. The District justifies its action in reclassifying the workers on the definition of confidential employee in the District's labor relations policy. Board Labor Relations Policy, at 2 (Complainant's Exhibit B).

This Agency notes initially that it favors exhaustion of contract grievance procedures to resolve disputes between management and employees where appropriate. The parties' grievance procedures define "grievance" as follows:

A "grievance" is a claim by an employee based upon an event or condition which affects the conditions or circumstances under which an employee works caused by misinterpretation or inequitable application of District policies or procedures on personnel matters directly pertaining to these conditions or circumstances, and/or the terms of this Agreement and amendments thereof.

Agreement at 34 (July 1, 1989 to June 30, 1992) (Complainant's Exhibit A). Because interpretation of the agreement and District policy is at the core of the parties' dispute, we note that this dispute would have been appropriate for resolution under the agreement's grievance procedures. However, because the interpretation of PERA is also important to the question posed by the District in its motion, we have retained jurisdiction.

The parties' agreement describes in the recognition clause those employees who are members of the CEA bargaining unit: For the purposes of collective bargaining with respect to wages, hours, and other terms and conditions of employment, the District recognizes the Classified Employees Association as the exclusive representative of all classified employees except for managerial, confidential, mid-level management employees, temporary employees, substitute employees or employees properly placed in other bargaining units according to the Board's Labor Relation Policy.

Agreement § I. 2. (July 1, 1989 -- June 30, 1992) (Complainant's Exhibit A) (emphasis added).

The dispute in this ULP is the District's determination that certain employees are excluded from the unit as confidential employees. "Confidential employees" is defined in the Board's Labor Relations Policy, which provides:

Confidential employees. As used in this policy, confidential employees means employees, who, in the normal course of their duties, may obtain advance information on the position of the Matanuska-Susitna Borough School District or the District's administration with regard to contract negotiations, disposition of grievances or other labor relations matters.

Board Labor Relations Policy, at 2 (Complainant's Exhibit B) (emphasis in original). This definition is worded differently than the definition of "confidential employee" adopted under PERA:

"[C]onfidential employee" means 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.

2 AAC 10.220(b)(1).

The District argues that this difference raises a conflict between PERA and the agreement and that for PERA to modify the agreement would be an impairment of contract in violation of the contract clause in Article 1, section 10, of the United States Constitution. Reaching this constitutional question is unnecessary, however, because the two definitions do not conflict.

The Board Labor Relations Policy itself requires that the agreement and Board Policy be read in harmony with state law. The Board Policy provides in its purpose clause that the policy was adopted to implement the amendments of AS 14.20.550 --14.20.610. In 1988 the legislature amended those provisions, which governed collective bargaining for certificated personnel in the school districts, to add classified employees. Ch. 95, §§ 1-7, SLA 1988 (eff. Sept. 1, 1988). The policy further provides that the policy "shall be interpreted and applied in accordance with the provisions of state law and the Board Policy Manual." Thus, this purpose clause directs that the Board's policy be applied consistently with state law, specifically with the law governing labor relations in AS 14.20.550 -- 14.20.610. Since the Board's policy was adopted, the legislature further amended AS 14.20.550 -- 14.20.590 in Senate Bill 15, Ch. 180, § 1, SLA 1990 (eff. June 22, 1990). Under those amendments, PERA now applies to labor relations in the school districts. Because the law now governing labor relations is PERA, any provisions in the District Policy must be interpreted and applied in accordance with PERA, including its definition of "confidential employees."

Interpreting and applying the definition of "confidential employee" in the Board Policy in accordance with the definition in PERA can be accomplished without violating the plain meaning of either. The policy's definition is worded in terms of the availability of confidential labor relations information to the employee to determine whether the employee is confidential. In contrast, PERA's definition is worded in terms of the role the employee plays in any labor relations proceedings. These terms do not conflict because any employee with access to confidential labor relations information reasonably should obtain access because of the role played in labor relations matters. The two definitions are consistent. In addition, PERA's definition directs that the definition of "confidential employee" be narrowly construed. This rule of construction should avoid any potential conflicts in the two definitions.

In sum, because the policy directs that it be applied in accordance with state law and the two definitions can be construed harmoniously, the Agency does not need to reach the questions which definition should prevail in the event of a conflict and whether PERA unconstitutionally impairs the contract.

Dated: December 10, 1990

THE ALASKA LABOR RELATIONS AGENCY

____________________________________

Robert M. Goldberg, Board Chairman

____________________________________

Barbara Huff, Board Member

____________________________________

H. O. Williams, Board Member

This is to certify that on the 10^th day of December, 1990 a true and correct copy of the foregoing was mailed, postage prepaid to

________________________________________

________________________________________

________________________________________

Signature

###