CASE NO. 92-058-UC
ALASKA LABOR RELATIONS AGENCY
3301 EAGLE STREET, SUITE 208
P.O. BOX 107026
ANCHORAGE, ALASKA 99510-7026
(907) 269-4895
Fax (907) 269-4898
STATE OF ALASKA, )
)
Petitioner, )
)
vs. )
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PUBLIC EMPLOYEES LOCAL 71 )
)
Respondent, )
)
and )
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ALASKA STATE EMPLOYEES )
ASSOCIATION, AFSCME LOCAL )
52, AFL-CIO )
)
Intervenor. )
_______________________________)CASE NO. 92-058-UC
DECISION AND ORDER NO. 165
This matter was heard on April 1, 1992, in Anchorage, Alaska, before the Alaska Labor Relations Agency, Chair Darrell Smith (Agency Chair to June 30, 1992) and board members Gil Johnson and James Elliott, and with Hearing Officer Jean Ward presiding. The record closed on April 1, 1992. The Agency issued an interim order on August 4, 1992, with this memorandum decision to follow.
Appearances:
Phyllis Schmidt, Personnel/OEEO Manager, for petitioner State of Alaska; Kevin Dougherty, General Counsel, for respondent Public Employees Local 71; and Kathryn L. Dietrich, Business Agent, for intervenor Alaska State Employees Association, AFSCME Local 52.
Digest:
Based on factors in AS 23.40.090, we find that the safety officer, Department of Transportation and Public Facilities, northern region, shares a community of interest with the labor, trades and crafts unit rather than the general government unit.
DECISION
The State files this petition to move a position from the labor, trades and crafts unit, represented by Public Employees Local 71 (Local 71), to the general government unit, represented by the Alaska State Employees Association (ASEA). The position, occupied by George Michael Hotrum, was reclassified from regional safety and airport security officer to a new job class called safety officer. Since Local 71 objected to the transfer of the position to the general government unit, the State asks the Agency to determine whether Hotrum belongs in the general government unit or in the labor, trades and crafts unit.
Findings of Fact
1. Local 71 represents a statewide unit of all State classified, nonsupervisory blue and grey collar employees of the executive branch working in the labor, trades and crafts unit under the terms of a collective bargaining agreement. Exh. 54.
2. ASEA represents a statewide unit of classified, nonsupervisory employees of the executive branch not included in another bargaining unit under the terms of a collective bargaining agreement. This unit is known as the general government unit and includes technical, professional and clerical personnel. Exh. 54.
3. On August 26, 1991, the State notified Local 71 that it would move the safety officer position, PCN 252098, at the Department of Transportation and Public Facilities (DOT&PF) northern region, in Fairbanks, from the labor, trades and crafts unit to the general government unit unless Local 71 objected.
4. Local 71 filed a timely objection.
5. On September 11, 1991, the State filed a unit clarification petition with the Alaska Labor Relations Agency to determine the appropriate bargaining unit for the safety officer PCN listed above.
6. Because the petition met the requirements for filing under 2 AAC 10.050, the Agency caused a notice of the petition to be posted on December 4, 1991. 2 AAC 10.060 & 2 AAC 10.070.
7. After the State reclassified Hotrum's position to safety officer on September 1, 1991, Hotrum performed the same duties that he had performed for four years as a regional safety and airport officer in the labor, trades and crafts unit.
8. The collective bargaining history for the safety officer position supports placement in either the labor, trades and crafts unit or in the general government unit. The safety officer job title has been in both of these units. The first safety officer position, for which a class specification was issued on April 1, 1971, was in the labor, trades and crafts unit as a result of a Globe election, (Globe Mach. & Stamping Co., 3 N.L.R.B. 294, 1A L.R.R.M. (BNA) 122 (1937)), which allowed employees in certain classifications, including safety officer, to determine for themselves whether they had a greater community of interest with the labor, trades and crafts unit or the general government unit. SLRA Order & Decision No. 5 at 2-4, (August 15, 1973).1 This first safety officer position remained in the labor, trade and crafts unit until August 16, 1974, when it was moved to the general government unit as a result of a letter of agreement between the Alaska Tri Trades Public Service Council and the State. This first safety officer class specification contains many of the same duties found in the November 20, 1991, safety officer class specification for Hotrum's position.
9. Community of Interest: Work location and employee contact. Hotrum splits his time between two work sites. He spends 80 to 85 percent of his time in the field, which consists of multiple state facilities at 48 duty stations, and between 15 to 20 percent of his time in the office. When Hotrum works in the field, 99 percent of his contacts are with employees who are assigned to the labor, trades and crafts unit. When he works at the office, he works in the technical services building near employees who plan utility relocations and perform environmental contracts. Hotrum has little interaction with the employees who work near his office.
10. Community of Interest: Job duties and certification required. Hotrum's job duties fall within four categories: safety inspection and testing activities; safety training; hazardous waste program; and explosives, fire extinguisher, and accident investigation and evaluation activities. Exh. 51.
a. Safety inspection and testing. Hotrum spends 40 percent of his time performing safety inspections. Included are conducting noise, ventilation, chemical, and stress-related evaluations; designing protective devices and abating hazards; and conducting inspections of buildings, equipment, and operating practices for compliance with safety codes. Exh. 51. In order to perform these duties, Hotrum must know numerous safety and hazardous toxic material handling codes. The experience he gained as an occupational safety compliance officer from 1975 to May, 1981, helps him perform his duties.
Hotrum approaches safety in a "hands on" manner. Although his job description does not require "hands on" abatement of safety problems, Hotrum's supervisor is aware and does not disapprove that he spends approximately 10 percent of his time performing "hands on" abatement work.
b. Safety training. Hotrum spends 20 percent of his time planning, organizing, and conducting safety or first aid seminars, workshops, training sessions and lectures. Exh. 51. He advocates voluntary compliance with safety requirements and tries to correct deficiencies by working with on-site supervisory employees.
c. Hazardous waste. Hotrum spends another twenty percent of his time handling the hazardous waste program. Program duties include devising, implementing, and maintaining a regional toxic and hazardous materials program; identifying toxic and hazardous materials; maintaining safety data sheets; providing toxic and hazardous materials training; representing DOT&PF on the local emergency planning committee; formulating a hazardous material handling plan and spill response plan; and serving as incident commander on the hazardous material response team while participating in cleanup of hazardous materials and chemical spills. Exh. 51. In order to perform these duties, he must maintain a hazardous materials certification.
d. Explosives, fire extinguishers, accident investigation and evaluation. Hotrum spends the remaining 20 percent of his time providing advice on the storage, handling, and transportation of explosives; participating in all voluntary safety inspections conducted by the Department of Labor and abating hazards discovered; evaluating worker's compensation reports and determining injury and accident patterns, abating problems, and investigating all serious injuries and fatalities; coordinating first aid and asbestos training; refilling, charging, and placing fire extinguishers in the workplace; and performing annual fire extinguisher checks and establishing a record system for their maintenance. Exh. 51. He must maintain a powder handler's certificate of fitness and a fire extinguisher permit.
11. Community of Interest: Similarities of work performed.
a. The State has a number of safety job classifications in different bargaining units. Other safety job classifications in the record are occupational safety compliance officer, safety consultant, assistant industrial safety inspector I and II, electrical inspector, plumbing inspector, and elevator inspector in the labor, trades and crafts unit; and chief boiler and pressure vessel inspector, boiler and pressure vessel inspector, and industrial hygienist in the general government unit.
b. The work Hotrum performs more closely resembles the work performed by other employees in the labor, trades and crafts unit. Hotrum, like the occupational safety compliance officer in the unit, inspects workplaces, identifies workplace hazards, prepares inspection reports, researches case files to determine repeat violations and case history, and inspects accidents to identify cause. Exh. A.
c. However, unlike the occupational safety compliance officer, Hotrum does not issue citations and penalties at public and private worksites. Hotrum works only for a public agency, DOT&PF, and works with the public agency to comply voluntarily. Exh. A & E. Although individuals in the safety officer and occupational safety compliance officer positions use different enforcement methods, individuals in both job classifications work toward a common goal: compliance with federal and State safety and health regulations.
d. Overall, the similarities between the work performed by the safety officer and the occupational safety compliance officers outweigh the differences.
e. Like the occupational safety compliance officers, electrical and plumbing inspectors in the labor, trades and crafts unit perform duties that are similar to Hotrum's duties. They explain code requirements, inspect worksites for code compliance, and prepare inspection reports.
f. However, unlike the safety officer, electrical inspectors issue cease and desist orders. Both plumbing and electrical inspectors review plans for code compliance, whereas Hotrum does not.
g. The similarities between the work performed by the electrical and plumbing inspectors outweigh the differences.
h. The general government unit position of industrial hygienist also can be compared to the safety officer position. Similarities include inspection of work sites to determine compliance with occupational health standards; taking samples to determine the presence of hazardous physical and chemical elements, investigating accidents, preparing and presenting training to various groups, and consulting with employers to assure workplace compliance with State health standards. Exh. 60.
i. Differences, however, include the industrial hygienist's work in preparing comprehensive written reports and performing limited laboratory and equipment calibration operations. Exh. 60. These differences by themselves are not significant enough to determine unit placement. When combined with other differences, such as minimum qualifications, employee contact, and special certifications, the safety officer position more closely resembles the occupational safety compliance officer position in the labor, trades and crafts unit than the industrial hygienist position in the general government unit.
12. Community of interest: Minimum qualifications. The qualifications required for the safety officer position more closely resemble those required for positions in the labor, trades and crafts unit. Unlike industrial hygienists, who must have a college degree in industrial hygiene or a closely related field, safety officers, like occupational safety compliance officers in the labor, trades and crafts unit, can qualify through experience only. Exh. 60 & Exh. A.
Hotrum qualified for the safety officer position due to work experience, including five year's employment as an occupational safety compliance officer. He testified that he does not have a bachelor's degree.
13. Community of interest: Special certifications. Because Hotrum is required to have special certifications, including a fire extinguisher permit and a hazardous waste responder certificate, his position shares similarities with other inspection positions in the labor, trades and crafts unit. For example, electrical and plumbing inspectors are required to be certified in their respective fields. Exh. C & D.
14. Community of Interest: Wages and benefits. Unit placement will affect wages and benefits because there are some minor differences, such as the $10,000 death benefit, in the Local 71 contract. The largest of these differences is the seniority referral list of the labor, trades and crafts unit. Hotrum has a good number on the Local 71 referral list because he has been a member of Local 71 for 17 years. Local 71 refers members for jobs based on their place on the seniority list. The evidence did not establish a difference in wages other than overtime required by the Local 71 contract. The State's position is that the safety officer is overtime exempt.
15. Community of Interest: Common supervision. Hotrum's supervisor, Horn, supervises one labor, trades and crafts employee, Hotrum, and one general government employee. The remaining employees Horn supervises are in the supervisory unit.
16. Desires of employees. Hotrum is the only person in the safety officer classification. He prefers that the position remain in the labor, trades and crafts unit, in part due to his 17 year's seniority and placement on the Local 71 referral list.
17. Hotrum's interests are more closely aligned with the employees who work in the labor, trades and crafts unit than with the employees who work in the general government unit.
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. Under AS 23.40.090,
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.
4. Community of interest refers to things the employees have in common. Included in factors used to determine an existence of community of interest are (1) whether the employees work in the same location and have regular contact with each other; (2) whether the employees perform similar types of work and have similar training and skills; (3) whether they have similar wage and benefit schedules; and whether the employees have common supervision. Bruce S. Feldaker, Labor Guide to Labor Law, 39-40 (3rd ed. 1990).
5. The labor, trades and crafts unit pertaining to certain occupational safety personnel is described as follows:
Order and Decision No. 1 of the Agency excluded certain craft classification[s], normally known as "Building and Construction Trades" crafts from the General Government Unit. Subsequently, the Agency's Order and Decision No. 5 gave a choice of accretion to either the General Government Unit or the Labor, Trades and Crafts unit to employees in classifications where the community of interest with respect to these two units was in question. A majority of the employees given that choice voted to be a part of the Labor, Trades and Crafts unit. The classifications concerned included Assistant Industrial Safety Inspectors, Industrial Safety Inspectors, Electrical Inspectors, Plumbing Inspectors, and Occupational Safety Compliance Officers. These classifications were included in the group to be given a choice of affiliation on the grounds that they were generally employees who had come from the ranks of tradesmen and craftsmen, who in some cases were required to have journeyman status in the specialty area concerned, and who had a great affinity of interest with the trades and crafts whose work they were responsible for inspecting. SLRA Order & Decision No. 24, at 1-2, (May 12, 1976).
6. The following community of interest factors strongly favor placement in the labor, trades and crafts unit: work performed primarily in the field; extensive contact with other labor, trades and crafts employees; job duties and minimum qualifications that are similar to other labor, trades and crafts positions; and similar certification requirements.
7. History of bargaining, wages, and common supervision.
These factors do not weigh in favor of placement in either unit.
8. Desires of the employee. This factor weighs in favor of placement in the labor, trades and crafts unit, which is where Hotrum wishes to remain.
9. The preponderance of evidence establishes that the safety officer position is a technical, grey collar position that is more closely aligned in community of interest with the labor, trades, and crafts unit than with the general government unit.
ORDER
We deny the State of Alaska's petition and order that the safety officer, PCN 252098, at the Department of Transportation and Public Facilities, northern region, be placed in the labor, trades and crafts bargaining unit.
Date: June 29, 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 Decision and Order No. 160 in the matter of State of Alaska v. Public Employees Local 71 and ASEA, AFSCME Local 52, AFL-CIO, Intervenor, case no. 92-058-UC, dated and filed in the office of the Alaska Labor Relations Agency in Anchorage, Alaska, this 1st day of July, 1993.
Norma Wren
Clerk IV
This is to certify that on the 1st day of July, 1993, a true and correct copy of the foregoing was mailed, postage prepaid, to
Phyllis Schmidt/State
Kevin Dougherty/Pub. Emp. Loc. 71
Kathryn L. Dietrich/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).
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