CASE NO. 92-073-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. 92-073-UC

DECISION AND ORDER NO. 147

This matter was heard on May 8, 1992, in Juneau, Alaska, before the Alaska Labor Relations Board, with Hearing Officer Jean Ward presiding. Board member Gil Johnson was present at the hearing personally, Board Member James Elliott, by telephone, and Chairman Darrell Smith, by consideration of the record and tapes of the hearing. The record closed on May 15, 1992.

Appearances:

Karen Capp, Personnel Specialist, for petitioner State of Alaska; Joan Wilkerson, Regional Manager, for respondent Alaska Public Employees Association; and Cindy Spanyers, Business Agent, for intervenor Alaska State Employees Association.

Digest:

The environmental conservation manager at the facility construction and operation office of the Department of Environmental Conservation in Juneau shares a community of interest with the general government unit rather than the supervisory unit because the position does not meet the requirements for supervisor in 2 AAC 10.220(b)(3).

DECISION

The State files this petition to move a position to the general government unit. Since Alaska Public Employees Association (APEA)objected to the transfer of the position to the general government unit the State asks the Agency to decide whether the position belongs in the supervisory unit or in the general government unit.

Preliminary Matter

On August 4, 1992, after consideration of the testimony and exhibits, the Agency issued an order requiring that the environmental conservation manager be placed in the general government unit. In addition, it ordered Petitioner, State of Alaska, (State) to submit by September 4, 1992, proposed findings of fact and conclusions of law for consideration by the board.

On September 10, 1992, APEA responded to that order by filing a motion to challenge the petition on grounds of lack of jurisdiction and a request for a stay.

Both the motion and stay are denied.

I. Jurisdiction.

APEA asks the Agency to deny the State's petition to move the environmental conservation manager from the supervisory unit to the general government unit. APEA argues the State, as a public employer, lacks standing to bring this petition because (1) 2 AAC 10.050 specifically recognizes that petitions for unit clarification are to be brought by "the public employee representative"; (2) the Agency lacks jurisdiction to render a binding decision because the State lacks standing to bring the petition; (3) jurisdictional objections may be brought at any time; and (4) no final order has been rendered on the petition.

2 AAC 10.050 (a) provides:

The public employee representative certified by the labor relations agency or currently recognized by the public employer may file a petition for clarification of a bargaining unit or amendment of the certification issued by the labor relations agency.

APEA apparently has acquiesced to the State's filing of unit clarification petitions for at least fifteen years. See In re Order & Decision No. 26A Pertaining to Unit Allocation of Individuals, SLRA Decision & Order No. 26A (Feb. 23, 1977).¹ By acquiescing, APEA may have waived any objection to the State moving as petitioner in unit clarification proceedings.

Moreover, Article 2, Section 1 of the current collective bargaining agreement between APEA and the State contains the following provisions:

It is recognized that all new positions and classifications created by the Employer shall be placed in the appropriate bargaining unit, consistent with prior Labor Relations Agency rulings. APEA shall be notified of all new classifications created within ten (10) days of such action and such notification shall include the specifications of the job classification assignments. No filled positions shall be changed to a bargaining unit outside this Bargaining Unit without written notification to APEA of such action concurrent with the notification to the Department. If APEA does not notify the employer within fifteen (15) working days from the date of notification of its intent to challenge, the Employer will be free to take the proposed action. . . .

The State complied with the terms of the collective bargaining agreement on October 29, 1991, by notifying APEA of its intent to move the environmental conservation manager from the supervisory unit to the general government unit. The State advised APEA of the following:

Please indicate your approval or disapproval of this action in the space provided below and return this letter with any comments you might have to our office within 15 working days.

In accordance with Article 2, Section 1, of the Supervisory Unit contract, if no comments are received within 15 working days, we will take the proposed action.

The Alaska Labor Relations Agency (ALRA) has the authority to make final determinations of unit assignments. If a union does not concur, we will submit our recommendations to the ALRA for a ruling. . . .

APEA signed the letter, indicating disapproval of the transfer of the environmental conservation manager to the general government unit on November 1, 1991. [UC Petition (Nov. 21, 1991) (attachment 1).] By signing the letter, APEA has waived any objection to the procedures followed in this case.

II. Stay.

APEA requests a stay of execution on the order placing the environmental conservation manager in the general government unit. The order was effective on issuance, with appeal rights commencing upon issuance of this Decision and Order. The request for a stay is denied.

Findings of Fact

1. APEA represents a statewide supervisory unit of all State supervisory employees under the terms of a collective bargaining agreement.

2. Alaska State Employees Association (ASEA) represents a statewide unit of all State general government employees under the terms of a collective bargaining agreement.

3. On October 29, 1991, the State notified APEA that it would move the environmental conservation manager (PCN 187131) at the facility construction and operation office, Department of Environmental Conservation, in Juneau from the supervisory unit to the general government unit unless APEA objected.

4. APEA filed a timely objection.

5. On November 21, 1991, the State filed a unit clarification petition with the Alaska Labor Relations Agency to determine the appropriate bargaining unit for the environmental conservation manager.

6. Because the petition met the requirements for filing under 2 AAC 10.050, a notice of the petition was posted on December 3, 1991. 2 AAC 10.060 & 2 AAC 10.070.

7. The incumbent in PCN 187131, Richard L. Marcum, is responsible for supervision and administration of the municipal grants and loans programs for the construction of sanitation facilities in the larger Alaskan communities. He develops and manages two grant and two loan programs. Marcum has been in this position eight and one half years.

8. Marcum supervises six positions. He has direct supervisory responsibility for four of these positions, including two environmental engineers IV, a project assistant and an internal auditor III. He indirectly supervises the other two positions.

9. Marcum testified that he spends his time in the following manner: forty percent is spent in handling personnel actions and supervising employees; thirty-seven percent is spent in program development, administration and implementation; twenty percent is spent in project engineering; and three percent is spent on computer functions, such as system hardware and software maintenance. Some of these time estimates differ from those contained in the position description questionnaire (PDQ) because Marcum's duties have changed somewhat since he completed the PDQ. For instance, most of the computer equipment has already been purchased and installed. Therefore, he no longer spends as much time evaluating computer hardware and software or selecting, purchasing and installing computer equipment. Marcum experiences difficulties in assigning percentages of time to supervisory responsibilities because he finds that supervisory responsibilities tend to overlap with other responsibilities, such as program management. Since duties overlap, the time Marcum spends performing supervisory tasks could exceed forty percent.

10. Marcum allocates supervisory responsibilities to two categories: employee supervision and personnel actions. He spends twenty-five percent of his time in employee supervision, performing the following tasks: monitoring program activities to ensure policies are being followed; determining the efficiency of the section and its personnel; directing work assignments; recommending reorganization; training staff in use of software and in managing construction grant programs; assisting engineers with interpretation of federal and state requirements; and providing guidance to the revolving loan fund manager. He spends fifteen percent of his time handling personnel actions. Marcum exercises full authority, subject to review by the director, for performing the following personnel actions: selecting, assigning, evaluating, suspending, dismissing, counseling, admonishing, praising, initiating discipline, approving leave, determining probationary retention, and settling employee grievances or complaints. He also develops work performance plans used in evaluations, participates in job selection interviews for staff elsewhere in the division, reviews performance evaluations completed by subordinates and develops or recommends individual training for subordinates.

Marcum's subordinates work at a professional level and do not require close supervision. Using a participatory management style, Marcum solicits input from his subordinates regarding major issues facing the section. He handles some of the most complex project engineering work himself due to the size of the workload. Marcum is accountable for all of the work done by his section. When he goes on leave, he customarily delegates authority, in writing, to a subordinate to act for him.

11. Appoint, Transfer, Suspend, Discharge and Adjudicate Grievances. Marcum has authority to appoint, transfer, suspend, discharge, and handle grievances for the four positions he supervises. No evidence was presented about the manner in which employees are appointed, transferred, discharged or suspended or about how Marcum adjudicates grievances of other employees. The only evidence presented about the regularity of Marcum's participation in these five supervisory functions was that he spends fifteen percent of his time performing various personnel actions listed above. Paragraph 10, Supra, pp.5-6. However, the State did not provide evidence on how often Marcum performs the five supervisory functions or how the fifteen percent of his time is allocated between these supervisory functions.

12. Promote. Marcum's PDQ shows that he does not have authority to promote. [UC Petition (Nov. 21, 1991) (attachment 3, PDQ).] However, Marcum testified that he could recommend that the project assistant be promoted, and we find that Marcum can recommend promotion and could promote the project assistant with the approval of the Commissioner. While he testified that his recommendations on promotion have never been reversed, he did not state how many recommendations he has made regarding promotion or how often he participates in the promote function.

Conclusions of Law

1. The Alaska Labor Relations Agency has jurisdiction to consider and hear requests for unit clarification under AS 23.40.090 and AS 23.40.160.

2. Petitioner State has the burden of proof under 2 AAC 10.430.

3. The Employment Relations Act requires at the state level that supervisors be in a separate bargaining unit from nonsupervisory personnel. 2 AAC 10.110(a)(1). "Supervisory employee" is defined by 2 AAC 10.220(b)(3) 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.

4. To be a supervisor under 2 AAC 10.220(b)(3), an individual must participate in the performance of "all" or "most" of the following functions: employ, promote, transfer, suspend, discharge, or adjudication of grievances of other employees. This Agency has determined that "most" means five of the six supervisory functions. State of Alaska v. Public Employees Local 71, ALRA Decision & Order No. 144 (Sept. 22, 1992). In State of Alaska, we established the following test to be used to decide whether an individual is a supervisor:

To "participate in the performance of" a function under the regulation, the supervisor must (1) have substantial responsibility on behalf of the employer and exercise it in a manner demonstrating independent judgment and (2) regularly participate in the function.

In that same decision, we established an additional test to be applied in instances where there is limited opportunity to exercise discretion in five of the six supervisory functions:

In instances where the individual has not had the opportunity to exercise discretion in five of the six supervisory functions named in 2 AAC 10.220(b)(3) because the span of supervision is small or because there have been no personnel changes or grievances, determining whether the individual exercises independent judgment is more difficult. In those cases where there has been no opportunity to exercise discretion in the six named supervisory functions, we will examine other supervisory duties, such as reviewing, training, evaluating, directing and assigning the work of subordinates, to determine if the individual exercises independent judgment. Absent a collective bargaining agreement that severely limits discretion, an individual who has not had an opportunity to exercise independent judgment in the six named functions will nonetheless be considered a supervisor if the individual exercises independent judgment when performing other supervisory duties.

5. Appoint, Transfer, Suspend, Discharge and Adjudicate Grievances. Marcum does not have supervisory status in these five supervisory functions. Although Marcum has independent authority to act in these five functions, there is no evidence in the record that Marcum exercises independent judgment in deciding who to hire or transfer. Similarly, there is no evidence that Marcum exercises independent judgment in adjudicating employee grievances and in handling the discharge and suspension functions. Likewise, the record is silent on whether Marcum regularly participates in these five supervisory functions. Because the record does not establish Marcum's lack of opportunity to exercise independent judgment, we do not need to consider the additional test to be applied when opportunity is limited.

6. Promote. Marcum does not have supervisory status in the promote function. Since his authority to promote is limited to recommend, he cannot act on his own to advance an employee. While he could exercise discretion in making the recommendation, he does not have independent authority to act on it. Absent this authority, he does not have independent judgment. The testimony established only that hypothetically Marcum could recommend promotion of the project assistant but not whether he had ever even had the opportunity. The record is silent on the regularity of Marcum's participation in this function. Since he does not have independent judgment and the regularity of his participation cannot be determined, we need not apply the limited opportunity test.

7. Applying these tests to the work performed by Marcum, we find that Marcum's community of interest is with the general government bargaining unit.

8. Marcum is properly placed in the general government unit because the evidence does not demonstrate the criteria for placement in the supervisory unit.

ORDER

We grant the State's petition and order that the environmental conservation manager at the facility and construction office of the Department of Environmental Conservation in Juneau, PCN 187131, be placed in the general government bargaining unit.

Date: October 16, 1992.

THE ALASKA LABOR RELATIONS AGENCY

B. Gil Johnson, Board Chairman

James W. 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 State of Alaska v. Alaska Public Employees Ass'n, Case No. 92-073-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

Karen Capp, State

Joan Wilkerson, APEA

Cindy Spanyers, ASEA

Signature

¹Before July 1, 1990, the Department of Administration, State Labor Relations Agency, administered the Public Employment Relations Act for the State. On July 1, 1990, the Alaska Labor Relations Agency assumed administration of the Act for the State, municipalities and school districts. Executive Order 77 (eff. July 1, 1990).

###