CASE NO. 92-057-UC

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

CASE NO. 92-057-UC

DECISION AND ORDER NO. 146

This matter was considered on the written record by the Alaska Labor Relations Agency, Chairman Gil Johnson and board members James Elliott and Darrell Smith, with Hearing Examiner Jan Hart DeYoung presiding. The record closed on July 31, 1992.

Appearances:

Joan M. Wilkerson, Regional Manager, for petitioner Alaska Public Employees Association/AFT; Teresa Williams, Borough Attorney, for respondent Ketchikan Gateway Borough; and William F. Morse, Associate General Counsel, for intervenor International Brotherhood of Electrical Workers, Local 1547.

Digest:

After assuming an areawide power over parks and recreation from the City of Ketchikan, the Ketchikan Gateway Borough succeeded to the City's bargaining representative and its collective bargaining agreement for the term of the agreement. This unit of parks and recreation department employees is appropriate under AS 23.40.090.

DECISION

The APEA argues that, when the Ketchikan Gateway Borough assumed the City of Ketchikan's parks and recreation department, the employees formerly working for the City in a collective bargaining unit represented by the International Brotherhood of Electrical workers should have been added to the Borough's APEA bargaining unit under the doctrine of accretion. The Borough and the IBEW take the position that, when the Borough assumed the City's parks and recreation department as an areawide power, under AS 29.35.340 it assumed the City's legal commitments to the IBEW in the City-IBEW collective bargaining agreement.

Statement of Facts

(Per Parties' Stipulation)

1. The Alaska Public Employees Ass'n/AFT (APEA) is and has been since 1985 the exclusive bargaining representative of a unit composed of all classified employees of the Ketchikan Gateway Borough (Borough), approximately 38 positions, who are not otherwise excluded from coverage in the recognition clause. Of the three other bargaining units the Borough recognizes, two are composed of airport ferry employees represented by the Inland Boatman's Union of the Pacific (IBU) and the International Organization of Masters, Mates, and Pilots (MMP). The third unit is the subject of the current dispute and the object of this unit clarification petition.

2. The unit represented by APEA had previously been represented by IBEW. As a result of a decertification election, the APEA replaced the IBEW as the unit's representative in 1985.

3. The current collective bargaining agreement between APEA and the Borough became effective May 1, 1989, and was to expire December 31, 1991; however, it is continuing in full force and effect pending completion of negotiations of a new agreement. Ex. A.

4. The IBU-Borough and MMP-Borough agreements were the only other collective bargaining agreements to which the Borough was a party as of May 1, 1989, the effective date of the APEA-Borough agreement. Ex. B & C.

5. The City of Ketchikan (City) is a home rule city that opted out of the Public Employee Relations Act (PERA), AS 23.40.070 -- 23.40.260. The Borough is a second class borough that has not opted out of PERA.

6. IBEW is and has been since 1974 the exclusive bargaining representative for the bargaining unit composed of classified employees of the City. Among the classified employees in that bargaining unit were the employees of the City Parks and Recreation Department. IBEW-City agreement, Ex. D.

7. On October 3, 1990, Vera Plumb, Assistant Business manager for IBEW Unit 103 in Ketchikan, wrote to David Crow, Borough Manager, expressing her belief that the Borough would be obligated to honor the terms of the IBEW-City agreement if the represented employees of the City Parks and Recreation Department were transferred to the Borough. Ex. E.

8. By letter dated December 13, 1990, David Crow told Vera Plumb that the Borough recognized its obligations under IBEW's agreement with the City regarding the Parks and Recreation Department employees being transferred to the Borough's employ. Ex. F.

9. On October 8, 1990, by voter mandate, the Borough was given the authority to exercise recreation powers on an areawide basis in accordance with AS 29.35.330.

10. As a result of this election, the Borough Assembly passed Ordinances 774 and 775, which exercised areawide recreation powers and established the Borough's Department of Parks and Recreation. On January 1, 1991, the employees of the City's Parks and Recreation Department were transferred to the Borough Parks and Recreation Department, thus becoming Borough employees. Ex. G & H.

11. In May 1991 David Crow for the Borough and Vera Plumb for IBEW agreed to extend the expiration date of the IBEW-City agreement relating to the parks and recreation employees from December 31, 1991, until December 31, 1992. Ex. I.

12. On August 14, 1991, David Crow wrote to Bruce Ludwig, Business Manager of APEA, responding to Ludwig's earlier inquiry regarding the Borough's failure to acknowledge the APEA agreement by not requiring the classified employees in the Parks and Recreation Department to sign up with APEA. Crow indicated that the Borough was recognizing the IBEW as the bargaining representative of the Parks and Recreation Department. Ex. J. Before that time, the Borough had not provided any written notification to APEA of either the absorption of the Parks and Recreation Department or the creation of new job classifications within the Borough classified service.

13. On August 28, 1991, APEA filed a petition for unit clarification with this Agency asking for a ruling declaring that the Borough Parks and Recreation Department employees were classified employees who were to be represented by APEA. Ex. K.

14. On January 8, 1992, the IBEW filed its Notice of Objecting Party/Automatic Intervenor. Ex. L.

15. On January 13, 1992, the Borough filed its Respondent's Statement. Ex. M.

16. The Borough is organized into departments. Prior to the implementation of Borough Ordinance 775, the Borough had six departments, which did not include a Parks and Recreation Department. With the creation of the new department, the City's parks and recreation employees were transferred into it. The Borough Parks and Recreation Department is organized and supervised the same way the other six departments are.

17. In July 1991 the Borough took over programming and staffing responsibilities for the pool facility from the Ketchikan Gateway School District. These services are administered through the Parks and Recreation Department. In August 1991 one classified position, the assistant pool manager, was created and staffed. This position is being represented by the IBEW.

18. Parks and recreation headquarters is located across the street from the building that houses the Borough's main offices.

19. The employees of the Borough Parks and Recreation Department are paid by the Borough through its Borough payroll system, just as APEA-represented classified employees are paid.

20. There are currently six Borough Parks and Recreation Department employees in the classified service. There are two recreation programmers, one assistant pool manager, one gardener, one assistant gardener, and one assistant park maintenance supervisor. The Borough uses the same job descriptions for these positions that the City used, except that "gardener" was referred to as a "city gardener I" by the City. Ex. N-R.

21. Employment decisions to hire, fire, promote, transfer, direct work, etc., are made by each department head subject to the approval of the Borough Manager. The Borough Parks and Recreation Department observes the same hierarchy in personnel matters.

22. The job descriptions of APEA-represented classified Borough employees appear in the record as Exhibits S-Z18.

Conclusions of Law

1. The Alaska Labor Relations Agency has jurisdiction under AS 23.40.090 to decide the unit appropriate for collective bargaining.

2. As the petitioner, APEA has the burden to prove "the truth of each element necessary to its cause by a preponderance of the evidence." 2 AAC 10.43O.

3. New employees accrete to an existing unit "only if the new and old employees truly share a 'community of interest.'" To determine whether the employees share a community of interest, the National Labor Relations Board examines the following factors:

(1) Similarity of working conditions;

(2) job classifications;

(3) skills and functions;

(4) similarity of products;

(5) interchangeability of employees;

(6) geographical proximity;

(7) centralization of management control;

(8) functional integration of the business; and

(9) collective bargaining history.

Westvaco v. National Labor Relations Bd., 795 F.2d 1171, 122 L.R.R.M.(BNA) 3070 (4th Cir. 1986), quoting Universal Security Instruments v. National Labor Relations Bd., 649 F.2d 247, 256-254, 107 L.R.R.M.(BNA) 2518, 2523 (4th Cir. 1981), cert. denied 454 U.S. 965, 108 L.R.R.M.(BNA) 2872 (1981).

4. The collective bargaining agreement between the City and IBEW is a contractual obligation covered under AS 29.35.340, which provides in part:

Effect of acquiring an areawide power. (a)On acquisition of an areawide power the first or second class borough succeeds to all of the rights, powers, and duties of any city or service area with respect to that power. The borough succeeds to claims, franchises, and other contractual obligations, liability for bonded and all other indebtedness, and to all of the right, title, and interest in the real and personal property held by a city or service area for the exercise of the power. . . .

5. When the Borough acquired the areawide power, it assumed all contractual obligations of the City under AS 29.35.340, including its collective bargaining agreement with IBEW. To

determine otherwise would result in the avoidance of contractual obligations when an areawide power is transferred, contrary to the clear intent of AS 29.35.340.

6. This result is consistent with the Public Employment Relations Act. AS 23.40.090 provides:

The labor relations agency shall decide in each case, in order to assure to employees the fullest freedom in exercising the rights guaranteed by AS 23.40.070--23.40.260, the unit appropriate for the purposes of collective bargaining, based on such factors as community of interest, wages, hours, and other working conditions of the employees involved, the history of collective bargaining, and the desires of the employees. Bargaining units shall be as large as is reasonable, and unnecessary fragmenting shall be avoided.

7. Providing a separate unit for the parks and recreation employees is appropriate under AS 23.40.090 because they share a community of interest in the parks and recreation department: they share similar wages, hours, and working conditions under the IBEW contract, and they share a collective bargaining history at the City not shared with employees in the Borough's APEA unit.

8. Because the parks and recreation employees share the factors named in AS 23.40.090, number six employees, and are covered by a contract assumed under AS 29.35.340, they constitute an appropriate unit under AS 23.40.090 and do not violate the prohibition against unnecessary fragmenting.

9. Because the parks and recreation employees have a separate group identity, they do not share sufficient community of interest to accrete to the APEA unit. Westvaco v. National Labor Relations Bd., 795 F.2d at 1173, 122 L.R.R.M.(BNA) at 3072.

10. The assistant pool manager added in July 1991 shares sufficient community of interest with the parks and recreation employees because of the similarity of working conditions, similarity of product, and organizational structure to accrete to the IBEW parks and recreation unit.

11. This decision does not preclude petitions for decertification and certification under 10 AAC 10.020 and 10 AAC 10.030 during the window period before expiration of the IBEW collective bargaining agreement.

ORDER

The Ketchikan Gateway Borough parks and recreation unit is an appropriate unit for collective bargaining and the Alaska Public Employees Association's petition to clarify the unit is DISMISSED.

THE ALASKA LABOR RELATIONS AGENCY

B. Gil Johnson, Chairman

James Elliott, Board Member

Darrell Smith, Board Member

APPEAL PROCEDURES

An Agency decision and order may be appealed through proceedings in superior court brought by a party in interest against the Agency and all other parties to the proceedings before the Agency, as provided in the Alaska Rules of Appellate Procedure and the Administrative Procedures Act.

The decision and order becomes effective when filed in the office of the Agency, and unless proceedings to appeal it are instituted, it becomes final on the 31st day after it is filed.

CERTIFICATION

I hereby certify that the foregoing is a full, true and correct copy of the Decision and Order in the matter of Alaska Public Employees Ass'n/AFT v. Ketchikan Gateway Borough, Case No. 92-057-UC, dated and filed in the office of the Labor Relations Agency in Anchorage, Alaska, this 25th day of November, 1992.

Norma Wren

Clerk Typist IV

This is to certify that on the 25th day of November, 1992, a true and correct copy of the foregoing was mailed, postage prepaid to

Joan Wilkerson, APEA

Teresa Williams, Ketchikan Gateway Borough

William Morse, IBEW

Signature

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