CASE NO. 94-311-RD

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. 94-311-RD

DECISION AND ORDER NO. 186

This case was heard on March 9 and 10, 1995, before a panel of the Alaska Labor Relations Agency, with board members Stuart H. Bowdoin, Jr., and Karen J. Mahurin, participating at the hearing and board member James W. Elliott, participating on the basis of a review of the record. Hearing examiner Jan Hart DeYoung presided. The record closed on March 10, 1995.

Appearances:

James A. Gasper, Jermain, Dunnagan & Owens, P.C., for petitioner Public Safety Employees Association; Art Chance, labor relations analyst, for respondent State of Alaska; and Don Clocksin, attorney, for intervenor Alaska State Employees Association, AFSCME Local 52, AFL-CIO.

Digest:

The petitioner has not justified departing from State Labor Relations Agency Order and Decision No. 120, which found that fish and wildlife enforcement officers do not share a community of interest with the regularly commissioned public safety officers unit represented by the Public Safety Employees Association and are therefore not appropriate to include in the RCPSO unit.

DECISION

A hearing was conducted on March 9 and 10, 1995, at which the parties presented testimony and other evidence. Upon consideration of the record, the Agency finds the facts as follows:

Findings of Fact

1. The Public Safety Employees Association (PSEA) is the recognized bargaining representative of the members of the regularly commissioned public safety officers’ unit (RCPSO) employed by respondent State of Alaska.

2. The Alaska State Employees Association (ASEA) is the recognized bargaining representative for the general government unit of the State.

3. PSEA seeks to sever from the general government unit represented by ASEA and add to its RCPSO unit the fish and wildlife protection officers (FWEOs). Petition (May 26, 1994), Exh. 110.

4. The State employed 25 FWEOs at their peak and presently employs about 21. Nineteen of the positions are seasonal with the season determined by the detachment commander.

5. The fish and wildlife enforcement officers enforce the fish and game laws under the general supervision of Alaska State troopers. The characteristics of FWEOs that distinguish them from fish and wildlife enforcement aides is that FWEOs are partially commissioned and have formal enforcement training. They are distinguished from troopers by the fact that enforcement authority is limited to fish and game laws and authority to carry weapons is restricted. Class specification (Aug. 16, 1992), Exh. 2.

6. FWEOs may in the course of their work perform patrol duties, apprehend violators, issue citations, perform limited investigations, provide information to the public on fish and game laws, participate in enforcement proceedings, and operate and maintain equipment, such as cameras, radios, firearms, and boats. Id.; see also, Position description questionnaires, Exhs. 20 & 21.

7. FWEOs must know basic law enforcement procedures, self-defense, and outdoor survival tactics. FWEOs must be able to operate communications equipment, various vehicles, hand tools, and handguns. They must be able to maintain self-control, deal with the public, communicate effectively orally and in writing, and perform physically demanding tasks. Class specification, Exh. 2.

8. The initial training provided FWEOs after hire is a 40-hour course in the use of force and general law enforcement techniques. Fish and wildlife enforcement officer Robert Beasley states that he receives training annually. He also has taken a three-day interview and interrogation course, and the 46-hour in-service that all troopers, court service officers, and FWEOs attend. Another officer, Brian Larsen, described the training as highlights from the trooper training course but not as long as the troopers’ training. FWEOs do receive some training in "shoot no shoot" situations. He believed the focus of the training had changed, with more emphasis on officer safety, and the intensity of the training had increased over time.

9. Officer Beasley, who currently works in the Anchorage detachment, described a normal day as Iditarod race patrol, moose calls, and false residency claim investigations. He estimates that half of his work time is spent with fish and wildlife division troopers, 25 percent, with fish and wildlife aides, and 25 percent, alone. Another FWEO described his typical days as dealing with moose, false subsistence license investigations, enforcement of fish and game regulations, and maintenance of State equipment.

10. To qualify to be a FWEO requires successful completion of a police academy or six months of experience enforcing fish and wildlife protection laws or providing public safety services in a rural area that is equivalent to work as a fish and wildlife aide or a village public safety officer. Id., at 2.

11. FWEOs are uniformed and their uniforms are similar in appearance to brown shirt troopers, i.e., troopers assigned to enforcement of fish and game laws. Compare Operating Procedures Manual (Feb. 1, 1994), Exh. 3, at 10-16 (troopers) with Field Manual (June 1, 1991), Exh. 4, at 11 (FWEOs). FWEOs’ badges are loomed, however, rather than metal. The apparel and equipment issued to FWEOs is similar to that issued brown shirt troopers. Compare FWEO uniform equipment inventory, Exh. 18, with trooper uniform equipment inventory, Exh. 19. A FWEO, however, may not carry his service weapon off duty.

12. FWEOs conduct investigations that result in arrests for illegal sale of sport caught fish or game and false residency claims to obtain a license, tag, or permit. See e.g., Memo. of appreciation (June 21, 1991), Exh. 5. Circumstances may require FWEOs to perform outside their normal duties. For example, one FWEO was commended for assisting in a rescue and accident investigation in 1992. Exhs. 6 & 10. Another example involved an incident in 1994 when two FWEOs responded to an apparent vehicle accident, which "ended up being an assault, car theft, and reckless driving." Exh. 14, at 1. FWEOs may also be assigned responsibilities outside their normal duties. For example, Officer Beasley was assigned to investigate the theft of a snowmobile in one instance and to assist with an arrest on a felony fugitive warrant in another. Exh. 16.

13. Fish and wildlife officers Beasley and Larsen stated that in the course of their duties they had been in positions to enforce Title 16 against other State employees, including a Department of Natural Resources employee, a Department of Transportation employee, a corrections officer, court personnel, a trooper, and an airport safety officer. Each stated that he did not let the fact of the offender’s State employment influence him in the performance of his enforcement duties.

14. Although FWEOs participate in criminal investigations related to fish and game, their police authority has significant limitations. They may not on a routine basis provide back-up to troopers or city police "for criminal arrests, violent gun related calls, and other routine police matters not dealing with resource enforcement." Field Manual, Exh. 4, at 6. FWEOs’ authority to make traffic stops is the same as a private citizens unless the stop is related to a fish and game offense or suspect. Id. FWEOs may arrest only under "radical circumstances." Id., at 15.

15. Troopers, on the other hand, have the full range of powers to enforce State criminal laws. Troopers can be divided into two groups, brown shirt and blue shirt troopers. Brown shirts are located in the Division of Fish & Wildlife Protection and the blue shirts in the Division of the Alaska State Troopers in the Department of Public Safety. The brown shirt troopers were transferred from the Department of Fish and Game in 1972 and are principally responsible for the enforcement of the fish and game laws in Title 16. Duties include enforcing the fish and wildlife rules, including hunting and fishing bag limits and seasons. The blue shirt troopers’ main responsibility is to enforce the criminal code. Both groups have the same training and authority and full police powers. Their duties include vehicle patrol, investigations and arrests; enforcement of fish and game and other State criminal laws; investigation of complaints and suspicious activities; investigation, surveillance, and arrests; preparation of reports; and participation in judicial proceedings. The class series of trooper is divided into a number of positions. A trooper recruit is a trainee level trooper. The working level trooper is the State trooper class, who must have successfully completed the public safety academy and who may work alone in remote areas or under supervision in a larger post or detachment. Exh. 104, at 1.

16. Another difference between FWEOs and troopers is the level of training. Troopers receive 400 hours of training and FWEOs receive 80 hours.

17. FWEOs do work with and under the supervision of troopers. Trooper George Petry testified that in a remote post he had supervised and worked with FWEOs and in Anchorage he had worked under the same supervisor as a FWEO.

18. Troopers are not the only members of the RCPSO unit. It also includes court service officers (CSO), security specialists, airport safety officers, and deputy fire marshals. Unlike troopers, CSOs do not have full police authority. They are partially commissioned, are not certified, and are assigned a limited range of duties and responsibilities, such as prisoner transport and process service. CSO class specification, Exh. 32. Airport safety officers appear to have broader police powers. They perform law enforcement, safety, and crash, fire, and rescue duties at State owned international airports. ASOs’ law enforcement duties include routine patrol, enforcement of State and federal statutes and airport regulations. ASO class specification, Exh. 122.

19. FWEOs are on the 30-year public employment retirement system, while troopers are on the 20-year system.

20. The State has decided to eliminate the FWEO position classification. As part of a reorganization, the State reclassified five FWEOs to State troopers. Exhs. 23, 24 & 25; Exh. 101, at 3. The State recruited among the FWEOs to fill these new positions, and intends to reclassify the remaining FWEOs to fish and wildlife aides. G. Pence letter to J. Gasper (Feb. 15, 1995), Exh. 27. The reasons provided for the change include increasing concerns regarding the constraints management had in using the FWEO positions; limited enforcement commissioned positions versus the versatility of State Trooper fully commissioned positions; potential liability issues surrounding the limited training provided to FWEO’s; potential liability of using the positions in an ever increasing non-controllable environment; cost and potential liability of selection criteria and processing; and an erroneous public perception of individuals in uniform with guns versus the limited authority granted the FWEO positions. [Id.]

See e.g., Position description questionnaire, Exhs. 29 & 30 (showing reclass of a FWEO position to a fish and wildlife aide).

21. Major Buell Russell, director of the Division of Fish and Wildlife Protection, described the decision to eliminate the FWEO job class. He stated that Colonel Valentine held meetings to discuss this issue with other members of the department in May, June, and July of 1994. The department was concerned about possible State liability for these uniformed officers who were only partially commissioned. FWEOs, for example, had became involved in chasing down and arresting felons and they had inadequate training for the situations that arose. FWEOs could become involved inadvertently in issues outside the proper scope of their authority. He gave as an example the 1994 incident involving the car theft and chase in which the FWEO acted outside of his job class by pursuing a suspect. The department had determined to train some as troopers and reduce the responsibilities of the remainder. Russell stated that the plan to reclassify the FWEOs to fish and wildlife aides, who are noncommissioned, nonuniformed employees, would be effective April 1, 1995.

22. Fish and wildlife aides are noncommissioned assistants to FWEOs or State troopers. The class specification lists their duties to include to participate on patrol, gather and preserve evidence, conduct surveillance, operate equipment, dispense hunting and fishing information to the public, serve as a crew member on a fishery patrol vessel, and perform clerical duties as requested. Class specification, Exh. 28. Russell described their duties as fixing outboard motors, cleaning boats, and tying vessel lines in support of vessel inspections by troopers.

23. Most of the FWEO positions are seasonal positions. ASEA has addressed the specific needs of seasonal employees in the collective bargaining agreement. For example, the State/ASEA Agreement provides for seasonal employees to remain on the register for their job class and compete for permanent positions in the same job class; to be placed on seasonal leave without pay at the end of the work season, which allows the employee to maintain seniority; to carry over annual leave, cash out leave in a lump sum or receive it in installments; and to receive 15 days’ notice before entering leave without pay status. Exh. 114, at 2-3. Seasonal employees may elect to receive overtime pay as compensatory time, which allows an employee to maintain health and other benefits longer than the actual employment season and to receive more time in pay status, which affects eligibility for retirement, merit increases, and leave accrual. Id., at 6. Seasonal employees also may delay commencement of insurance coverage to allow some coverage after placement on seasonal leave to allow time to take advantage of the health benefits. Id., at 7. The ASEA is continuing to bargain on behalf of seasonal employees’ concerns during the ongoing negotiations of the successor agreement.

24. Officer Brian Larsen had sought assistance from ASEA in a disciplinary matter and had no complaint with ASEA’s representation of him. Before that he had had little contact with ASEA. In 1991 the FWEOs requested a meeting with the ASEA representative. Officer Larsen sat through the meeting. The FWEOs met with ASEA business agent Chuck O’Connell about FWEO concerns about inclusion in the twenty year retirement system and a pay increase. The State reevaluated the pay range assignment, and one and one-half years after the FWEOs’ meeting with the ASEA representative, the State did change the range assigned from range 12 to range 13, resulting in an increase in pay.

25. FWEO Larsen contacted O’Connell after Larsen had heard a rumor about the reclassification to fish and wildlife aide. O’Connell apparently advised that the State was seeking a strike class change.

26. On June 6, 1994, the State had filed a strike class petition to reclassify the FWEOs from Class 1, ineligible to strike, to Class 3, eligible to strike. Exh. 31, at 2. After this Agency issued an order reclassifying FWEOs to strike Class 3, ASEA filed a motion to vacate the Agency order. One of the grounds stated was the absence of service by the State on affected employees, as required under 8 AAC 97.260(c). The Agency vacated the order and required service. The State did serve the employees by certified mail. There was no objection to the petition and the Agency reinstated its order reclassifying the FWEOs to strike Class 3. Exh. 119.

27. After Larsen talked with O’Connell, he received a certified copy of the State’s petition to change the FWEOs’ strike class. Exh. 31, at 2. Larsen did not complain to ASEA or ask that any action be taken on his behalf.

Procedural History

28. PSEA filed a petition to represent the fish and wildlife enforcement officers on May 26, 1994. At the time of filing PSEA was an affiliate of the International Union of Police Associations (IUPA), which is a member of the AFL-CIO.

29. On April 14, 1994, ASEA, which is an affiliate of the American Federation of State, County, and Municipal Employees, also a member of the AFL-CIO, filed a complaint under the provisions of the AFL-CIO internal disputes plan that PSEA was seeking to represent employees for whom it had an established bargaining relationship.

30. On June 17, 1994, AFL-CIO President Lane Kirkland requested that this Agency hold the petition in abeyance pending the AFL-CIO’s internal dispute proceedings. On June 20, 1994, the hearing examiner ordered that action be suspended on the petition for a period of 45 days.

31. Ultimately PSEA withdrew from IUPA and, on October 24, 1994, asked that the Agency amend its caption on the petition to drop PSEA’s affiliation with IUPA and asked that this Agency proceed with the representation petition.

32. On November 14, 1994, intervenor ASEA filed its notice of objection to the petition and to the removal of employees from the general government unit.

33. On November 14, 1994, ASEA filed a motion to dismiss the petition on the basis that the original petitioner no longer existed. PSEA opposed the motion on November 28, 1994.

34. This Agency confirmed that PSEA met the required showing of interest and the various work sites of affected employees were posted by December 6, 1994.

35. On December 12, 1994, the hearing examiner denied ASEA’s motion to dismiss the petition.

36. On December 22, 1994, ASEA filed a request for a subpoena for the production of the following documents: a blank showing of interest card, copies of all executed showing of interest cards collected by PSEA, front and back, the affiliation agreement between PSEA and IUPA, and any charter issued by IUPA for PSEA.

37. The hearing examiner denied the subpoena request on December 22, 1994, for the reason that the documents were not relevant, as set forth in the order denying the motion to dismiss dated December 12, 1994, and under 8 AAC 97.060(d).

38. On January 6, 1995, respondent State of Alaska filed its objection to the petition.

39. At a prehearing conference on January 9, 1995, this petition was set for hearing on March 9 and 10, 1995.

40. On February 14, 1995, ASEA filed an appeal of the hearing examiner’s ruling on the request for subpoena. On February 24, 1995, PSEA responded to the appeal. A ruling on the appeal follows.

Preliminary Matter: appeal of denial of subpoena request

The Alaska State Employees Association seeks copies of documents for the purpose of challenging the showing of interest made by PSEA under AS 23.40.100(a) and 8 AAC 97.025(c). The basis for the challenge is PSEA’s withdrawal from affiliation with the International Union of Police Associations after the filing of this decertification petition.

This Agency has the authority to issue subpoenas requiring the attendance and testimony of witnesses and the production of relevant evidence. AS 23.40.160(a). The question is whether the documents ASEA requests would have the tendency to prove or disprove a fact material to the petition. The documents requested are a blank showing of interest card, copies of all executed interest cards, and the IUPA/PSEA affiliation agreement and charter. ASEA asserts that the information is relevant on important issues, namely whether PSEA as it exists now is a different entity than the petitioner -- PSEA Local 92 IUPA -- and whether the employees who signed the cards would have done so if they had known the local union had not maintained its relationship with the IUPA and AFL-CIO. The affiliation agreement and the charter would bear on the identity of PSEA and the interest cards on the entity supported by the employees.

However, neither of the two issues named by ASEA is relevant. The showing of interest is not at issue in these proceedings. It is a threshold determination made by the Agency when a petition is first filed. To determine whether a representation petition is supported by 30 percent of the employees in the proposed bargaining unit, the Agency investigates interest cards or an employee petition submitted by the petitioner. 8 AAC 97.060(c). The showing of interest must be satisfied before other parties and this Agency are required to undergo the expense and effort of an election and related proceedings. One commentator has stated that the National Labor Relations Board’s similar requirement of a showing of interest prevents the Board from getting bogged down in elections that the union has no chance of winning. B. Feldacker, Labor Guide to Labor Law 27 (3d ed. 1990). The determination that a showing of interest is sufficient is final and only subject to review under 8 AAC 97.470. 8 AAC 97.060(c).

A change in affiliation should not invalidate a showing of interest or require the dismissal of a case. The demonstration of interest in PSEA when it was Local 92 IUPA should be a sufficient demonstration of interest to justify an election, if an election were otherwise appropriate. To decide differently could involve the Agency in time consuming attacks on a collateral issue to no apparent benefit. If the Agency were to err in confirming sufficient interest to justify an election, its error would be corrected necessarily at the election: if the labor organization does not have the support, it will not prevail.

The National Labor Relations Board does not generally allow challenges to the showing of interest and it also protects the confidentiality of employees who showed interest in the petitioner:

The employer is not permitted to inspect the cards, and at the hearing no litigation is permitted concerning fraud, forgery, or coercion in obtaining cards. The adequacy of petitioner’s showing in general is by prehearing administrative determination of the Board, "not subject to direct or collateral attack at hearings."

1 Patrick Hardin, The Developing Labor Law 379 (3d ed. 1992). One NLRB decision addresses the effect of a change in affiliation on a labor organization's demonstration of interest. In Monmounth Medical Center, 247 N.L.R.B. 508, 103 L.R.R.M.(BNA) 1130, 1131-1132 (1980), the NLRB had set aside an election. The labor organization subsequently affiliated. The issue before the NLRB was whether to proceed with a second election or to dismiss the petition because of the affiliation change. The employer contended that the change invalidated the showing of interest. The NLRB rejected this position, stating,

[T]here appears to be no evidence herein that a schism occurred or that the employees would be confused about who is their collective-bargaining representative. In fact, by placing the Union on the ballot in its affiliated form, any such confusion would be eliminated. Further, the employees involved in the instant case have indicated through the original showing of interest an underlying intent to be represented by a union, or, at the very least, a desire of being placed in a position to cast a ballot. Therefore, dismissing the petition at this point would unnecessarily defeat this expression of intent. Moreover, by having the election, all of the unit employees will be given the opportunity to vote for or against the Charging Party's action in affiliating with the AFT at the same time that they are voting on the on the question of whether or not they want the Union in its present affiliated form to represent them.

The Board allowed the showing of interest to stand but required that the affiliated status of the union be shown on the ballot.

This Agency looks for guidance to the decisions of the National Labor Relations Board and federal courts. 8 AAC 97.450(b). We adopt the position of the NLRB in this case. By allowing an election to proceed but requiring the ballot to reflect affiliation, the Agency should provide an adequate opportunity for affected employees to vote for or against the change in affiliation. The purpose of the showing of interest is to provide proof of enough support to justify the expense and trouble of an election. That purpose was served in this case. Technicalities should not defeat employees’ opportunity to determine for themselves whether to organize for purposes of collective bargaining.

The relevant issues in this proceeding are those related to the appropriateness of the unit and severance under AS 23.40.090 and 8 AAC 97.025. The information ASEA seeks does not bear on these issues.

We also note that the signed interest cards, among the documents requested, are confidential under 8 AAC 97.060(d), which states,

The employee petition or interest cards in support of a showing of interest are confidential records that may not be disclosed and are not part of the public record.

ASEA challenges the effectiveness of 8 AAC 97.060(d) to protect the interest cards under AS 09.25.120(a)(4), which provides that all public records are available for public inspection unless protected by federal statute, regulation or State law. AS 09.25.120, however, governs disclosure under the public records law. It does not govern whether a document is discoverable in an administrative proceeding or is within the power of the Agency to subpoena.¹

ASEA also appeals the grant of the PSEA’s request for a subpoena for records related to ASEA’s representation of the fish and wildlife enforcement officers. The request was for all bargaining proposals submitted by ASEA that pertain to FWEOs; a copy of ASEA’s most recent bargaining agreement; copies of all grievances filed by FWEOs in the last five years; copies of all communications regarding FWEOs during the last year and a half; and copies of all unprivileged documents relating to the recent decision by the Agency to reclassify FWEOs as Class 3 employees under AS 23.40.200(a)(3). All of these documents are directed to the discovery of information relevant on the issue of the adequacy of ASEA’s representation of these employees. This issue is relevant in a petition to sever employees from an existing unit. 8 AAC 97.025(b)(1); International Bhd. of Elec. Workers v. Fairbanks North Star Bor. Schl. Dist., Decision & Order No. 153, at 16 & 28 (Mar. 24, 1993).

ASEA, however, does not argue that the documents are not relevant. Instead it argues that requiring the disclosure would (1) invade the relationship between employee and bargaining representative, (2) violate AS 39.25.080, which protects the confidentiality of certain personnel records, and (3) be burdensome. ASEA does not cite any privilege or other principle that would maintain the confidentiality of these documents. We believe that any confidentiality issues or burdens could be cured by redacting confidential or sensitive information and by addressing the burden created by the request and not by refusing disclosure of relevant information.

We affirm the decisions of the hearing examiner on the subpoena requests.

Conclusions of Law

1. The State of Alaska is a public employer under AS 23.40.250(7) and the Public Safety Employees Association and Alaska State Employees Association are employee organizations under AS 23.40.250(5). This Agency has jurisdiction under AS 23.40.090 and 23.40.100 to consider this petition.

2. PSEA as the petitioner in this case has the burden to prove each element of its claims by a preponderance of the evidence. 8 AAC 97.350(f).

3. Because PSEA seeks to sever a group of employees from an existing unit, it must satisfy the requirements of 8 AAC 97.025(b):

(b) In addition to the requirements of (a) of this section, if a petition for certification proposes to sever a bargaining unit from an existing bargaining unit, the petition must state

(1) why the employees in the proposed bargaining unit are not receiving adequate representation in the existing unit;

(2) whether the employees in the proposed bargaining unit are employed in jobs that have traditionally been represented in the same unit;

(3) why the employees in the proposed unit have a community of interest that is not identical with that of the employees in the existing unit;

(4) how long the employees in the proposed bargaining unit have been represented as part of the existing unit; and

(5) why the grant of the petition will not result in excessive fragmentation of the existing bargaining unit.

4. In addition, PSEA must establish that the unit it proposes, combining the FWEOs with the existing RCPSO unit, would be an appropriate unit for 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." In addition, units must be "as large as is reasonable" and avoid "unnecessary fragmenting." AS 23.40.090.

5. Any decision on these issues will have little effect on the employees involved in this hearing. The employees in the FWEO job class have been reclassed as fish and wildlife aides and troopers. The unit placement of those positions is not at issue in this petition.

6. PSEA earlier petitioned to add the fish and wildlife enforcement officers to its unit in 1988. That petition resulted in Public Safety Employees Ass’n v. Alaska State Employees Ass’n and State of Alaska, SLRA Order & Decision No. 120 (Aug. 28, 1989). The State Labor Relations Agency examined the community of interest factors in AS 23.40.090 and found,

(a) FWEOs wore uniforms and caps similar to and often mistaken for that of those Fish & Game Alaska State Troopers commonly called "Brown Shirts";

(b) FWEOs had a cap and badge similar in some respect to Brown Shirt equipment but would only wear this equipment on duty;

(c) FWEOs carried weapons but unlike Brown Shirts did not carry these weapons as concealed, could not carry them off duty, and had no training in "shoot/don’t shoot" situations;

(d) FWEOs did not take polygraph tests as Brown Shirts;

(e) FWEOs are minimally trained compared to Brown Shirts; minimum qualifications require either police certificate or six months as an FWA or VPSO, which positions do not have specific training prerequisites;

(f) FWEOs were entitled to public employees general government retirement benefits rather than police retirement benefits;

(g) FWEO arrest power is limited to Title 16 fish and game violations and was not greater with regard to any other state laws than that held by the ordinary citizen;

(h) All but three FWEOs were hired seasonally, unlike the Brown Shirts who are non-seasonal permanent hires;

(i) While many FWEO participants aspired to be Alaska State Troopers there was no consistent pattern of advancement from FWEOs and Alaska State Troopers;

(j) FWEOs often worked alone or regularly with other GGU non-police officials, such as park rangers; some FWEOs are, however, dispatched with brown shirts.

Id., at 3. The SLRA also examined the absence of any evidence to support a carve-out of these employees, as required under Mallinckrodt Chemical Works, 162 N.L.R.B. No. 48., 64 L.R.R.M.(BNA) 1011 (1966), and concluded that there was "no compelling reason or justification to carve out these workers from the GNU and place them in the RCPSOU." Id., at 5.

7. The rule of res judicata generally provides that, where parties have had an adequate opportunity to litigate an issue, even in an administrative proceeding, the parties are precluded from relitigating it. The party against whom preclusion would work must have been a party, or in privity with a party, in the earlier proceeding; the issue must be the same issue; the earlier proceeding must have been finally resolved, and the issue must have been essential to that judgment.

There are four basic requirements for the application of issue preclusion: the party against whom preclusion would work must have been a party, or in privity with a party, to the first action, Rapoport v. Tesoro Alaska Petroleum Co., 794 P.2d 949, 951 (Alaska 1990); the issue to be precluded from relitigation must be identical to the issue decided in the first action, Id.; the first action must have resolved the issue by final judgment on the merits, Id.; and the determination of the issue must have been essential to the final judgment, Restatement (Second) of Judgments § 27 (1982). In Alaska, as in most jurisdictions, issue preclusion may apply to administrative adjudications.

Johnson v. Alaska Department of Fish & Game, 836 P.2d 896, 906 (Alaska 1991), quoted in Public Employees Local 71, AFL-CIO v. City of Haines, Decision & Order No. 184, at 12 (Feb. 14, 1995); see also 2 Kenneth Culp Davis & Richard J. Pierce, Jr., Administrative Law Treatise § 13.4 (3d ed. 1994).

8. In this case we are asked to address the same questions addressed by the State Labor Relations Agency in SLRA Order & Decision No. 120 -- whether adding fish and wildlife enforcement officers to the RCPSO unit would make an appropriate unit and whether severing the FWEOs from the general government unit represented by ASEA was justified. The parties are the same; the earlier proceeding was finally resolved; and the issues to be precluded were essential to the final judgment. However, the issue is not precisely the same. SLRA Order & Decision No. 120 involved fish and wildlife aides, in addition to the FWEOs, and there have been some very minor changes in the working conditions, at least with regard to training, and ASEA now has some history as a bargaining representative to be examined. Even if the doctrine of res judicata is not strictly appropriate in this case, we are still guided by the policies and principles announced in the earlier case. Stability and consistency better serve labor relations and as a general rule this Agency will attempt to follow previous decisions issued under PERA. We see no reason to depart from SLRA Order & Decision No. 120 in this case. The facts have not changed substantially since 1988, except that the State has announced that it is eliminating the position of FWEO. PSEA did establish some changes in the caliber of the training provided FWEOs, but for the most part the working conditions of FWEOs have not changed. While FWEOs share with brown shirt troopers similar uniforms and enforcement of fish and game laws in Title 16 of the criminal code, FWEOs do not have the broad police powers that distinguish members of the RCPSO unit.

9. We therefore find, consistently with SLRA Order & Decision No. 120, that no reasons justify carving FWEOs out of the GGU and we find that FWEOs do not share a community of interest with the RCPSO unit.

ORDER

1. The petition of the Public Safety Employees Association to sever the fish and wildlife safety officers from the general government unit and add them to the regularly commissioned public safety officers unit is hereby DISMISSED;

2. The State of Alaska is ordered to post a notice of this decision and order at all work sites where members of the bargaining unit affected by the decision and order are employed or, alternatively, serve each employee affected personally. 8 AAC 97.460.

ALASKA LABOR RELATIONS AGENCY

Stuart H. Bowdoin, Jr., Board Member

James W. Elliott, Board Member

Karen J. Mahurin, 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 SAFETY EMPLOYEES ASSOCIATION (F.W.E.O.) v. STATE OF ALASKA, DEPARTMENT OF PUBLIC SAFETY, AND ALASKA STATE EMPLOYEES ASSOCIATION, AFSCME LOCAL 52, AFL-CIO, Case No. 94-311-RD, dated and filed in the office of the Alaska Labor Relations Agency in Anchorage, Alaska, this 25th day of May, 1995.

Victoria D. Scates

Administrative Clerk III

This is to certify that on the 25th day of May, 1995, a true and correct copy of the foregoing was mailed, postage prepaid, to

James A. Gasper/PSEA

Don Clocksin/ASEA

Art Chance/State

Signature

¹However, ASEA’s argument ignores the right to privacy protected under Alaska Const. Art I, § 22, which could protect against the disclosure of the identity of the employees signing the cards under AS 09.25.120. See eg., 1987 Inf. Op. Att’y Gen. (July 15; 663-87-0598) 1987 WL 121118 (Alaska A.G.). Disclosure risks exposure to retaliation and the possibility of disclosure could chill employees’ exercise of their rights under AS 23.40.070. In this case disclosure of the cards would expose the identity of the signers of the cards for no real purpose. See Pacific Molasses Co. v. NLRB, 577 F.2d 1172, 99 L.R.R.M.(BNA) 2048 (5th Cir. 1978) (discussing disclosure of cards in context of federal Freedom of Information Act request).

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