CASE NO. 93-198-RC

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

CASE NO. 93-198-RC

DECISION AND ORDER NO. 163

This case was heard on the briefs before the Alaska Labor Relations Agency, with Chair Gil Johnson and Board Members James W. Elliott and Darrell Smith, participating, and Hearing Examiner Jan Hart DeYoung, presiding. The record closed on June 29, 1993.

Appearances:

Kevin B. Dougherty, Attorney, for petitioner Public Employees Local 71; and E. Budd Simpson, Birch, Horton, Bittner & Cherot, for respondent City of Haines.

Digest:

The Public Employment Relations Act applies unless a municipality affirmatively acts to reject it by ordinance or resolution. Because a municipality must act promptly and not at its leisure, adopting a resolution rejecting PERA approximately four and one half years after the effective date is ineffective to reject PERA.

DECISION

Findings of Fact

(Per Parties' Stipulation)

1. The City of Haines is a first class city, incorporated on January 24, 1910.

2. On May 2, 1977, Haines adopted Resolution 5277-A, which states:

RESOLUTION REJECTING THE APPLICATION OF ARTICLE 2 OF AS. 23.40 KNOWN AS THE PUBLIC EMPLOYMENT RELATIONS ACT

WHEREAS, section 4 of the Public Employment Relations Act reads as follows:

"Sec. 4. This Act is applicable to organized boroughs and political subdivisions of the state, home rule or otherwise, unless the legislative body of the political subdivision, by ordinance or resolution, rejects having its provisions apply."

NOW THEREFORE, BE IT RESOLVED, by the council of the City of Haines that the Public Employment Relations Act, Chapter 113, SLA 1972, is hereby rejected and declared to be non-applicable to the City of Haines.

3. Haines had no knowledge of any attempts of its employees to organize for collective bargaining purposes when it adopted Resolution 5277-A.

4. On February 17, 1993, Public Employees Local 71 filed a petition to represent for collective bargaining purposes a unit of Haines' employees.

5. Included in the unit are all non-supervisory non-clerical employees, consisting of laborer, equipment operator, assistant water/sewer operator, harbormaster, assistant harbormaster, police dispatcher, police patrolman, police sergeant, and firefighters. Excluded are all supervisory and clerical employees, consisting of city clerk, police chief, tourism director, city administrator, fire chief, water and sewer operator, public works foreman, treasurer, assistant treasurer, and tourism assistant.

6. On March 8, 1993, the Alaska Labor Relations Agency advised Frank Wallace, Mayor of Haines, that because Resolution 5277-A was adopted more than one year after the effective date of PERA, it was untimely and ineffective to reject it under section 4, ch. 113, SLA 1972.

7. On March 17, 1993, Haines posted a timely notice of the petition in eight employee work sites in Haines, as required by the Agency.

8. Haines filed a timely objection to the Notice of Petition with the Agency on March 26, 1993, providing as grounds that its exercise of its section 4 exemption was timely and effective.

9. No notice was provided to Haines in the 12 months after the enactment of PERA that its option to reject PERA in section 4, ch. 113, SLA 1972, in the view of the Agency, would expire in one year.

10. A prehearing conference was held in this matter on April 6, 1993, at which the parties expressed a preference to proceed on written briefs and stipulated facts as the issues were principally legal.

11. A prehearing order was issued on April 7, 1993, establishing a deadline of April 14, 1993, to request a hearing before the board and providing proposed election documents and procedures and a briefing schedule.

12. Neither of the parties requested a hearing or objected to the proposed election documents or procedures.

13. The record closed on Tuesday, June 29, 1993, the date of receipt of a party's supplemental brief following the issuance of the decision in Kodiak Island Borough v. State, Op. No. 3965 (June 4, 1993).

Discussion

The labor relations agency¹ has reviewed a number of challenges to a municipality's rejection of the Public Employment Relations Act under section 4, ch. 113, SLA 1972. International Bhd. of Elec. Workers, Local 1547 v. Kodiak Island Borough, DOLLRA Decision & Order 90-5 (May 4, 1990), aff'd, Kodiak Island Borough v. State, Slip Op. No. 3965 (June 4, 1993); Alaska Public Employees Ass'n v. City of Bethel, DOLLRA Decision & Order 90-6 (Nov. 7, 1990), remanded for factual findings, no. 4BE 90-219 CIV (super. ct. April 8, 1992); Alaska Public Employees Ass'n v. City of Bethel, Decision & Order No. 152 (Dec. 30, 1992) (decision after remand), appeal docketed, no. 4BE 93-42 CIV (super. ct. Jan. 26, 1993); International Bhd. of Elec. Workers v. City of Homer, Decision & Order No. 138, at 6 - 7 (Dec. 31, 1991), appeal dismissed, No. 3AN-92-1095 CI (super. ct. May 21, 1992); Teamsters Local 959 v. City of North Pole, Decision & Order No. 139 (Jan. 16, 1992); International Union of Operating Engineers, Local 302 v. City of Kotzebue, Decision & Order No. 140 (May 28, 1992), remanded for factual findings, no. 2KB-92-088CI (super. ct. Nov. 9, 1992) (hearing on remand scheduled for Aug. 2, 1993); International Bhd. of Elec. Workers, Local 1547 v. Thomas Bay Power Authority, Decision & Order No. 145 (Nov. 25, 1992). Section 4, ch. 113, SLA 1972 has also been the subject of a number of Alaska Supreme Court decisions.²

The facts presented in this case most closely resemble the facts in International Union of Operating Engineers, Local 302 v. City of Kotzebue, Decision & Order No. 140, and we apply that decision here.

Conclusions of Law

1. This Agency has jurisdiction under AS 23.40.100 to consider this petition for representation.

2. As a first class city, the City of Haines is a political subdivision under section 4, ch. 113, SLA 1972.

3. Section 4, ch. 113, SLA 1972 provides:

This Act is applicable to organized boroughs and political subdivisions of the state, home rule or otherwise unless the legislative body of the political subdivision, by ordinance or resolution, rejects having its provisions apply.

4. The Public Employment Relations Act, AS 23.40.070 -- 23.40.260 (PERA), was signed into law on June 7, 1972, and became effective on September 5, 1972.

5. PERA applies absent an affirmative act to reject it. Alaska v. City of Petersburg, 538 P.2d 263, 268, 89 L.R.R.M.(BNA) 3095, 3098 - 3099 (Alaska 1975).

6. A municipality must act promptly and diligently under section 4, ch. 113, SLA 1972 to exercise its rights under that section. International Union of Operating Engineers, Local 302 v. City of Kotzebue, ALRA Decision & Order No. 140, at 12.³

7. A delay of approximately four and one half years between the adoption of resolution 5277-A and the effective date of PERA is not acting "promptly" and the delay invalidates the attempt to reject PERA. It exceeds by one year the time period rejected in International Union of Operating Engineers, Local 302 v. City of Kotzebue, Decision & Order No. 140, and by three and one-half years the one year period to act established in International Bhd. of Elec. Workers, Local 1547 v. Thomas Bay Power Authority, Decision & Order No. 145, at 7.

8. City of Haines Resolution 5277-A is ineffective to reject the application of PERA and PERA therefore applies to the City of Haines.

9. The unit of laborers, craftspersons, harborworkers, and public safety employees that Public Employees Local 71 seeks to represent, which is more specifically described in finding of fact paragraph 5, is an appropriate unit for purposes of collective bargaining under AS 23.40.090.

10. The election will proceed as proposed in the documents provided with the Agency's prehearing order on April 7, 1993.

ORDER

1. The City of Haines' objection to the representation petition of Public Employees Local 71 is DISMISSED.

2. The Agency will proceed to conduct a secret ballot election among the members of the bargaining unit described in finding of fact paragraph 5 in accordance with the procedures set forth in the memorandum of agreement and other draft election documents provided to the parties on April 7, 1993.

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 Public Employees Local 71 v. City of Haines, case no. 93-198-RC, dated and filed in the office of the Alaska Labor Relations Agency in Anchorage, Alaska, this 19th day of July, 1993.

Norma Wren

Clerk IV

This is to certify that on the 19th day of July, 1993, a true and correct copy of the foregoing was mailed, postage prepaid, to

Kevin Dougherty/Pub Emp Local 71

E. Budd Simpson/City of Haines

Signature

¹Before July 1, 1990, the Department of Labor, Labor Relations Agency (DOLLRA) was the labor relations agency responsible for reviewing these challenges. That responsibility transferred to the Alaska Labor Relations Agency under Executive Order 77 (date).

²Kodiak Island Borough v. State, Slip Op. No. 3965 (June 4, 1993); City and Borough of Sitka v. International Bhd. of Elec. Workers, Local 1547, 653 P.2d 332, 114 L.R.R.M.(BNA) 2858 (Alaska 1982); City of Fairbanks v. Fairbanks AFL-CIO Crafts Council, 623 P.2d 321, 108 L.R.R.M.(BNA) 2397 (Alaska 1981); Anchorage Municipal Employees Ass'n v. Municipality of Anchorage, 618 P.2d 575, 108 L.R.R.M.(BNA) 2255 (Alaska 1980); Alaska v. City of Petersburg, 538 P.2d 263, 89 L.R.R.M.(BNA) 3095 (Alaska 1975).

³The decision in City of Kotzebue was reviewed in the superior court and the Agency will be considering the decision on remand. International Union of Operating Engineers, Local 302 v. City of Kotzebue, Decision & Order No. 140 (May 28, 1992), remanded for factual findings, no. 2KB-92-088CI (super. ct. Nov. 9, 1992) (hearing on remand scheduled for Aug. 2, 1993). The Alaska Supreme Court has not yet reviewed whether delay in the absence of preexisting organizational activity will invalidate a resolution or ordinance rejecting PERA. Kodiak Island Borough v. State, Slip Op. No. 3965, at n. 3 (June 4, 1993) (see concurring opinion at 11).

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