CASE NO. 91-013-UCP (consolidated)

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

CASE NO. 91-013-UCP (consolidated)

DECISION AND ORDER NO. 132

The Agency accepts and adopts as its own, the Findings of Fact and Conclusions of Law of the Hearing Officer.

1. PCN No. 075826, Employment Security Analyst III, Peter J. Sullivan, incumbent, is ordered placed in the supervisory unit represented by Alaska Public Employees Association; and

2. The following PCNs should remain in the general government unit represented by Alaska State Employees Association:

a. PCN No. 044010, Accounting Clerk II, Department of Revenue, Yvonne (Larsen) Bell, incumbent;

b. PCN No. 250267, Accounting Technician I, Department of Transportation and Public Facilities, Lois J. Ashley, incumbent;

c. PCN No. 250276, Accounting Clerk II, Department of Transportation and Public Facilities, Margaret R. Thompson, incumbent; and

d. PCN No. 252959, Accounting Clerk II, Department of Transportation and Public Facilities, Olivia K. Lewis, incumbent.

It is so ordered.

DEPARTMENT OF LABOR

ALASKA LABOR RELATIONS AGENCY

Dated: May 28, 1991

H. O. Williams, Board Chairman

B. Gil Johnson, Board Member

Darrell Smith, Board Member

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

CASE NO. 91-013-UCP (consolidated)

HEARING OFFICER'S PROPOSED DECISION AND ORDER NO. 132

These consolidated unit clarification petitions were heard on March 5, 1991, in Juneau, Alaska, and on March 14, 1991, in Anchorage, Alaska, with Hearing officer Thomas E. Stuart, Jr., presiding. The record closed on March 14, 1991.

Appearances:

On March 5, 1991, Tamara Hungerford for State of Alaska, Bill Quinn for Alaska State Employees Association (ASEA), Joan Wilkerson for Alaska Public Employees Association (APEA), and Greg O'Claray for Confidential Employees Association (KK). On March 14, 1991, Phyllis Schmidt for State of Alaska, Eric Simpson for ASEA, and Joann Eakin for CEA.

Digest:

The Alaska Labor Relations Agency approves the transfer of one position to the State's supervisory unit but disapprovesthe transfer of four positions to the confidential unit.Before the Agency will approve transfers to the confidential unit, the position must have duties directly involving sensitive collective bargaining matters.

DECISION

The State of Alaska petitioned for unit clarification of seven positions. Pursuant to the collective bargaining agreement between the State of Alaska and the Alaska State Employees Association, ASEA petitioned for another seven positions. These unit clarification petitions, filed between August of 1990 and October of 1990 and consolidated, cover the following proposed transfers:

1. PROPOSED TRANSFER FROM SUPERVISORY UNIT (APEA) TO GENERAL GOVERNMENT UNIT (ASEA).

PCN CLASS TITLE LOC NAME

075132 Employment Security ANCHORAGE Faith,

Specialist III Rogan C.

2. PROPOSED TRANSFER FROM GENERAL GOVERNMENT UNIT (ASEA) TO SUPERVISORY UNIT (APEA). Listing new class title where applicable.

3. PROPOSED TRANSFER FROM GENERAL GOVERNMENT UNIT (ASEA) TO CONFIDENTIAL UNIT (KK). Listing new class title where applicable.

4. PROPOSED TRANSFER FROM LABOR TRADES & CRAFTS UNIT (LOCAL 71) TO GENERAL GOVERNMENT UNIT (ASEA).

Listing new class title where applicable.

5. PROPOSED TRANSFER FROM LABOR TRADES & CRAFTS UNIT (LOCAL 71) TO SUPERVISORY UNIT (APEA).

Listing new class title where applicable

Objections to the following transfers were withdrawn before hearing:

Through the above administrative actions, the number of unit clarifications were reduced to the proposed transfer of four positions from the general government unit (GGU) to the confidential unit (KK). They are PCN No. 250267, Lois J. Ashley, Accounting Clerk III; PCN No. 250276, Margaret R. Thompson, Accounting Clerk II; PCN No. 252959, Olivia K. Lewis, Accounting Clerk II; and PCN No. 044010, Yvonne Larsen, Accounting Clerk II. Also addressed is the proposed transfer of PCN No. 075826, Peter J. Sullivan, from the general government unit (GGU) to the supervisory unit (SU).

By rescinding objections to nine of the original petitions, the parties removed those positions from review, and the hearing officer did not consider the merit or lack of merit of the proposed transfers.

The ASEA initially filed the petition in this case in August 1990 to object to the transfer of a GGU (ASEA) position to the SU (APEA). Over a period of time, between August 1990 and October 1990, 13 other petitions for unit clarification were received by the Agency from both ASEA and the State of Alaska. These petitions were consolidated into this case file. ASEA, as representative of the State's GGU, opposed transfers from the GGU. APEA, as the representative of the State's SU, opposed transfers from the SU. ASEA, APEA, and the Confidential Employees Association (KK) each argued in favor of transfers into their respective units.

Preliminary Matter

At the commencement of the March 5, 1991, hearing, the Alaska State Employees Association raised an oral objection to the hearing procedures. The objection was to the procedure for handling PCN transfers between the certified bargaining units of State employees. The State was given the opportunity to respond to the objection and argued that the hearing procedure should be upheld. The Hearing Officer overruled the objection and the hearing was conducted.

Findings of Fact

1. ASEA is the certified collective bargaining representative for the State's GGU. APEA is the certified

collective bargaining representative for the State's SU. CEA is the certified collective bargaining representative for the State's KK.

2. The proposed transfer of PCN No. 075826, Employment Security Specialist III, Department of Labor, Mr. Peter J. Sullivan, incumbent, from the general government unit to the supervisory unit.

In August 1990, the State, based on a request from the Department of Labor, proposed the transfer of this PCN from the GGU to the SU. ASEA objected to the transfer and under the collective bargaining agreement with the State petitioned the Agency to hear the matter. From the evidence, this hearing officer finds as follows:

a. Number of employees supervised.

Per PDQ 5

Per testimony 5

b. Percentage of time as supervisor.

Per PDQ 60%

Per testimony 60 - 70%

c. Appoint. Mr. Sullivan has the authority to call for a register, do the interviews, and make the selection for a new employee under his control.

d. Promote. There is no opportunity for promotion within Mr. Sullivan's group.

e. Transfer. He does have the authority to transfer employees within his purview if the occasion should present itself.

f. Suspend. Working within the guidelines of the approved procedures for disciplinary actions, he has the authority to suspend an employee.

g. Discharge. In following the disciplinary procedures, he can recommend discharge but must have approval of his supervisor.

h. Grievances. He has the authority to enter into formal grievance settlement at his level.

i. Approve leave.

Per PDQ-- Yes

Per testimony -- Yes

j. Complete performance evaluation.

Per PDQ-- Yes

Per testimony-- Yes

k. Assign and check work.

Per PDQ-- Yes

Per testimony-- Yes

l. Instruct and train.

Per PDQ-- Yes

Per testimony-- Yes

m. Set priorities and work schedules.

Per PDQ-- Yes

Per testimony-- Yes

3. The proposed transfer of PCN No. 044010, Accounting Clerk II, Department of Revenue, Yvonne (Larsen) Bell, incumbent, from the general government unit to the confidential unit.

In October 1990 the State, based on a request from the Department of Revenue, proposed the transfer of this PCN from the general government unit to the confidential unit. ASEA objected to the transfer, and under the collective bargaining agreement with the State, petitioned the Agency to hear the merits of this matter. From the evidence, this hearing officer finds the following:

a. Community of interest. The other seven employees in the payroll/leave unit of the Personnel Section for the Department of Revenue are all members of the confidential unit (KK). There was no evidence presented to indicate that the three positions in question had the same job duties or reporting requirements of the other positions in their unit.

b. Duties. Accounting clerks perform clerical accounts maintenance work. Accounting Clerk II is the journey level class where work performed is of moderate difficulty and involves the preparation, processing, classification, auditing, reconciliation and maintenance of financial and statistical records and ledgers.

Ms. Bell performs difficult clerical accounting and maintenance duties to process leave for department employees. The duties of this position include checking leave slips for accuracy, completeness and appropriateness of action and processing them through AKPAY, the new State payroll system. She also established and maintains employee leave accounts in the AKPAY system and keeps manual leave records on employees as needed to monitor leave accounting activity. Ms. Bell performs system entries for late leave and adjustments to employee history files, reviews AKPAY leave reports to verify correct posting and processing of leave and makes corrections as directed. She audits payroll warrant registers to check deductions of leave without pay amounts and audits departmental leave records annually. She gathers timesheets and compares leave slip information against leave hours reported on timesheets, and verifies prior service information for employees. Also, the incumbent will cross-train with the Accounting Clerk III on routine payroll duties.

4. The proposed transfers in the Department of Transportation and Public Facilities, Payroll/Personnel Office, of PCN No. 250267, Accounting Clerk III to Accounting Technician I, Lois J. Ashley, incumbent; PCN No. 250276, Accounting Clerk II, Margaret R. Thompson, incumbent, and PCN No. 252959, Accounting Clerk II, Olivia K. Lewis, incumbent, from the general government unit to the confidential unit.

In October 1990, the State requested that these PCNs be added to this consolidated case. This request had been submitted earlier in the year, prior to the establishment of this Agency and prior to the new ASEA contract. These disputes were still pending when the previous Alaska State Labor Relations Agency disbanded. From the evidence, this hearing officer finds as follows:

a. Community of interest. These three positions work in the payroll/personnel offices performing a variety of confidential and bargaining unit related personnel and payroll duties and are located in the same office area with other employees that are in the confidential unit.

b. Duties.

PCN No. 250267, Accounting Technician I, Lois J. Ashley, incumbent, exercises lead responsibilities over two accounting clerks that facilitate processing of the Central Region's payroll. The incumbent supervises the payroll staff and reports directly to Mr. Darrell Keith, Personnel Officer.

PCN No. 250276, Accounting Clerk II, Margaret R. Thompson, incumbent, and PCN No. 252959, Accounting Clerk II, Olivia K. Lewis, incumbent. Both individuals hold the working title of Payroll Clerk. Their main job duty is to interpret and report time accurately and maintain pay and leave records for approximately 400 employees, covering GGU, supervisory, and Local 71 bargaining units. They assure time and equipment reports are properly completed and process leave request/reports. Both positions assist personnel with any employee questions and forms pertaining to pay/leave issues as needed. They maintain individual employee payroll files. When requested by supervisors, they supply totals of leave used by employees for inclusion on evaluations. Also they make suggestions to immediate supervisor for simplifying procedures when applicable.

Mr. Clois R. Hamilton, Labor Relations Analyst, Division of Labor Relations, Department of Administration, in his capacity as negotiator said he would not go to a regional personnel officer/ office for payroll information or financial input but would go to the departmental personnel officer in the Juneau headquarters. Also Mr. Hamilton could never recall having a personnel officer at the negotiating table or having direct input into collective bargaining negotiations in relation to the larger units such as the GGU or SU. While the positions in question do not process sensitive collective bargaining information, Mr. Hamilton said he would have reservations about having to ask general government unit members for calculations that may directly affect them if the negotiations concern the GGU.

Conclusions of Law

1. The Agency has jurisdiction to hear and consider requests for unit clarification pursuant to AS 23.40.090 and AS 23.40.160.

2. 2 AAC 10.220 (b)(3) defines a "supervisory employee" as:

An individual having substantial responsibility on behalf of the public employer regularly to participate in the performance of all or most of the following functions: employ, promote, transfer, suspend, discharge or adjudicate grievances of other employees, if in connection with the foregoing, the exercise of such responsibility is not of a merely routine nature but requires the exercise of independent judgment.

3. This regulation was applied by the State Labor Relations Agency in a number of cases, see e.g., Labor Relations Agency Order and Decision No. 63, State v. APEA, case no. UC 80-14 (1981), and Labor Relations Agency Order and Decision No.122, APEA v. State, case no. UC 89-1 (partial) (1989). These cases set forth a number of guidelines including the following:

a. Transfers must be reviewed on a case by case basis for factual determination such that all employees with the same job classification do not automatically fall within the same bargaining unit;

b. The supervisor must "supervise" at least two subordinates;

c. A majority of the six criteria identified in 2 AAC 10.220(b)(3), i.e., four, must be demonstrated;

d. An employee must dedicate "most" of his or her day-to-day responsibilities to supervisory tasks; and

e. The incumbent must demonstrate independent authority to engage in the majority of criteria described. Mere recommendations do not constitute independent authority.

4. 2 AAC 10.220(b)(1) defines a "confidential employee" as:

An employee who assists and acts in a confidential capacity to a person who formulates, determines, and effectuates management polices in the area of collective bargaining. The term "confidential employee" shall be narrowly construed.

Discussion

1. Proposed transfer to supervisory unit.

The evidence presented during the hearing established that Mr. Sullivan's position did in fact have substantial responsibility and authority to act independently in a majority of the functions that have been established as guidelines in determining the appropriate bargaining unit placement.

2. Proposed transfers to confidential unit.

The key matter providing "confidential employee" status is the employee's relationship to sensitive collective bargaining issues. "Confidential employee" in this context does not mean personal right to privacy or confidentiality.

2 AAC 10.220(b)(1) mandates that the term "confidential employee" be narrowly construed. We therefore narrowly construe the definition to require that, before a transfer to the confidential unit is appropriate, the employee must in fact be involved in or act in a confidential capacity to a person who is involved in sensitive collective bargaining matters.

This hearing officer notes initially that the proposed transferees work with other employees in the confidential unit. Much State office space is shared, by necessity, with employees

from a mix of bargaining units. While location is a consideration when determining unit placement, the assigned job duties carry more weight in the determination.

The proposed transferees have relatively little if any input or contact with the collective bargaining negotiations process. Analysis of bargaining issues that may affect payroll or leave is done at a higher supervisory level within the department and communicated to the central office for implementation. Employees in this section may be involved in manual calculations or compiling data required for negotiations, but the employees are not involved in analyzing that data or in devising bargaining positions or strategies.

For example, during the testimony given by Ms. Bell, Mr. Price, Accounting Technician II, Department of Revenue, Ms. Bell's immediate supervisor and Ms. Morgan, Personnel Officer II, Department of Revenue, Mr. Price's immediate supervisor and head of the payroll section, it became clear that the duties of this position were confidential because they were involved with personnel records and not because they were sensitive to collective bargaining or negotiation strategy. Neither of Ms. Bell's two immediate supervisors has any involvement in collective bargaining or negotiation strategy. Their only input to the Division of Labor Relations would be to list issues that the payroll section may have encountered in the day to day application of collectively bargained items.

The burden of proof of establishing a "confidential employee" under 2 AAC 10.220(b)(1) increases the more removed the position in question is from directly reporting to a personnel officer or other member of management charged with collective bargaining responsibilities. There was insufficient evidence presented to support the contention that the positions met the definition.

There are accounting technician and accounting positions elsewhere in state government which are, without controversy, in the confidential unit as opposed to the GGU. Also there are accounting technician and accounting positions in the GGU as opposed to the confidential unit. As per previous decisions these positions were placed in a collective bargaining unit dependent upon actual assigned duties. In the positions above, the assigned duties relate to confidential matters of a personnel nature, not to confidential information that may be sensitive to the collective bargaining process. Moreover, the positions do not assist someone who is directly involved in that process.

The primary reason for separating the confidential unit from the general government unit under PERA is the fact that those employees work with labor relations information that is sensitive because it affects negotiations of the general government unit's wages and terms of employment. These employees, however, work with employee records that are confidential for privacy reasons. AS 39.25.080 governs that conduct. This statute insures that personnel records are protected. Location in the confidential unit would neither add nor detract from that responsibility. Thus, the fact that an employee works with confidential personnel records does not justify placement in the confidential unit.

Recommended Order

For the reasons set forth in the foregoing proposed findings of fact and proposed conclusions of law, the hearing officer recommends that the Agency order the following:

1. PCN No. 075826, Employment Security Analyst III, Peter J. Sullivan, incumbent, be placed in the supervisory unit represented by Alaska Public Employees Association; and

2. The following PCNs should remain in the general government unit represented by Alaska State Employees Association:

a. PCN No. 044010, Accounting Clerk II, Department of Revenue, Yvonne (Larsen) Bell, incumbent;

b. PCN No. 250267, Accounting Technician I, Department of Transportation and Public Facilities, Lois J. Ashley, incumbent;

c. PCN No. 250276, Accounting Clerk II, Department of Transportation and Public Facilities, Margaret R. Thompson, incumbent; and

d. PCN No. 252959, Accounting Clerk II, Department of Transportation and Public Facilities, Olivia K. Lewis, incumbent.

Dated: April 12, 1991

ALASKA LABOR RELATIONS AGENCY

By:

Thomas E. Stuart, Jr.

Hearing Officer

###