CASE NO. 95-407-ULP

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. 95-407-ULP

DECISION AND ORDER NO. 189

This matter was heard on June 12, 1995, in Anchorage, Alaska, before a panel of the Alaska Labor Relations Board, with members Alfred L. Tamagni, Sr., James W. Elliott, and Karen J. Mahurin, participating, and hearing examiner Jan Hart DeYoung, presiding. The record closed on June 12, 1995.

Appearances:

Art Chance, labor relations analyst, for complainant State of Alaska; Lawrence Schwerin and Cheryl French, Schwerin, Burns, Campbell & French, for respondent Inlandboatmen’s Union of the Pacific, Alaska Region.

Digest:

Refusing to return to negotiations after the legislature failed to approve the monetary terms in the State/IBU collective bargaining agreement is an unfair labor practice under AS 23.40.110(c)(2); and because the State and IBU have not bargained since the legislature’s action, they are not at impasse.

DECISION

A hearing was conducted on June 12, 1995, at which the parties presented testimony and other evidence. Upon consideration of the record, the panel finds the facts as follows:

Findings of Fact

1. The Inlandboatmen’s Union of the Pacific, Alaska Region, (IBU) is the recognized representative of the bargaining unit of unlicensed crew of the vessels of the Alaska Marine Highway System. Agreement Rule 2, (Oct. 10, 1994 - Mar. 31, 1996), Exh. 1, at 1; Exh. H, at 1.

2. The parties began bargaining the current agreement in January of 1993.

3. The parties proceeded to mediation in October of 1993. After mediation, the parties reached their first tentative agreement. Key terms of this first agreement included a wage increase for oilers and junior engineers only and a cost of living increase in the second year of five percent. There were also significant changes in operational issues. The membership of the IBU rejected the agreement and the State requested to return to negotiations. Tentative Agreement (Oct. 29, 1993), Exh. B.

4. The parties negotiated a second agreement. The second agreement, in which the parties had agreed to only minimal changes from the first agreement, was also rejected by the unit membership. Tentative Agreement (Mar. 16, 1994), Exh. C.

5. The parties again returned to the negotiating table and on June 22, 1994, again reached a tentative agreement. The third agreement included a 3.5 percent increase for all unit members except entry level stewards, effective on July 1, 1995. Tentative Agreement (June 22, 1994), Exh. D.

6. The unit members ratified the third tentative agreement.

7. The operational changes in the third tentative agreement became effective after ratification on October 10, 1994.

8. The pay plan and maintenance and cure provisions were referred to the legislature for approval as monetary terms and their effective date was delayed pending legislative action.

9. The parties in their agreements have addressed the consequences of the legislature’s failure to approve monetary terms. Among the changes that became effective on October 10, were changes to that rule. The previous agreement provided in Rule 37.02 that, if the legislature failed to appropriate adequate funds for the monetary terms of the agreement, "Rule 14.07 shall be waived." Rule 14.07 provided:

There shall be no strikes, lockouts, sympathy strikes, slow downs or stoppages of work during the term of this Agreement, it being the intent of the Employer and the Union that all disputes be settled in accordance with the provision of this Agreement. Notwithstanding this, however, no employee working under this Agreement shall be required to board any vessel of the Employer which is being picketed by any union in connection with a lawful primary strike sanctioned by the President of the Inlandboatmen’s Union of the Pacific, Alaska Region.

Agreement, Rules 14.07 & 37.02 (April 1, 1990 - March 31, 1993), Exh. A, at 13 & 47. In the new agreement, Rule 39.02 adds the language, "[T]he parties shall be free to take such actions as are lawful pursuant to AS 23.40.070 - AS 23.40.270." Agreement, Rule 39.02 (Oct. 10, 1994 -- Mar. 31, 1996), Exh. 1, at 40. The additional language only states that the parties may act as the statutes allow.

10. During negotiations the parties did discuss the possibility that the legislature would not approve the monetary terms. Exh. 4, at 3. (Doyle’s bargaining notes referencing discussion of legislative approval).

11. Because of problems with the availability of State bargaining team members in the past, IBU Regional Director Bob Provost in May of 1995 asked Mila Doyle, state representative, to reserve dates for negotiations in the event the legislature recessed without approving the contract. Doyle agreed to reserve several dates. Exhs. 2, 3, & 9; Exhs. F & G.

12. The legislature did not approve the monetary terms. The operating budget adopted by the legislature expressly rejects the monetary terms in the State/IBU negotiated agreement:

Failure of the legislature to adopt a separate appropriation item to fund the monetary terms of the collective bargaining agreement covering unlicensed employees of the Alaska marine highway system negotiated between the state and the Inlandboatmen’s Union constitutes rejection of the monetary terms of that agreement in accordance with AS 23.40.215. Money appropriated in this Act may not be used to implement the negotiated monetary terms of that agreement.

CCS HB 100, Sec. 38(b), Exh. E, at 2.

13. On May 17, 1995, the IBU filed its notice of strike vote

election, stating:

After two years of negotiations with much time and money spent by both sides on this issue, the Union membership voted to approve the tentative agreement bargained in good faith with the State of Alaska. This agreement was acknowledged and signed into effect by both parties on October 10, 1994. As of this date, May 17, 1995, the Alaska State Legislature has failed to fund the monetary terms of the contract. The Union considers the parties at impasse and requests authorization to conduct a strike vote.

B. Provost, letter to J. Ward (May 17, 1995), Exh. H.

14. The State’s initial response was to invite the IBU to reenter negotiations on the dates the parties had reserved. Exh. I.

15. Provost’s response was to inform Commissioner Boyer that "IBUP still considers the parties at impasse and will continue to pursue authorization from the ALRA for a strike vote." The letter does not clearly and unambiguously refuse to bargain and appears to anticipate additional bargaining:

I too, look forward to meeting with you at the negotiating table if it comes to that. I hope that your anticipation of reaching a mutually satisfactory agreement will not be dampened if the IBUP comes to the table with a valid strike vote in hand.

B. Provost, letter to M. Boyer (May 18, 1995), Exh. K.

16. Subsequently, Provost stated somewhat less ambiguously:

Given the State’s position, we want to be sure we understand the effect of the appropriations bill. As we understand the bill, AMHS cannot implement any of the monetary terms of the agreement we reached previously and cannot implement any monetary improvements in the contract until the legislature meets again and approves such monetary improvements. If we are incorrect, please let us know.

Since we are not willing to accept any proposal that does not implement the monetary improvements we agreed to after more than two years of negotiations, and the AMHS is not in a position to implement these terms, we are at impasse. The AMHS is in a position in which it cannot offer us a proposal which we will accept. Under these circumstances, we do not believe there is any reason to meet on May 31, 1995, and intend to proceed with the strike vote.

B. Provost, letter to M. Boyer (May 30, 1995), Exh. L.

17. To the date of the hearing at least, the IBU had refused to bargain.

18. Doyle represented that the State is prepared to make bargaining proposals. She identified general areas that the parties could explore in bargaining that would not involve legislative approval, such as step pay systems, personal leave, biweekly versus semimonthly pay, and operational changes. Doyle believes the parties can "salvage" the agreement.

Conclusions of Law

1. The State of Alaska is a public employer under AS 23.40.250(7) and the Inlandboatmen’s Union of the Pacific, Alaska Region is a labor organization under AS 23.40.250(5). This Agency has jurisdiction under AS 23.40.110 and Hafling v. Inlandboatmen’s Union of the Pacific, Alaska Region, 585 P.2d 870 (Alaska 1978), to consider this complaint.

2. The State of Alaska, as the complainant, has the burden to prove each element of its claim by a preponderance of the evidence. 8 AAC 97.350(f).

3. AS 23.40.110(c)(2) provides,

A labor or employee organization or its agents may not . . . refuse to bargain collectively in good faith with a public employer, if it has been designated in accordance with the provisions of AS 23.40.070--23.40.260 as the exclusive representative of employees in an appropriate unit.

4. The State in this case argues that the IBU has committed an unfair labor practice by refusing to bargain after the legislature failed to approve the monetary terms of the parties’ tentative agreement referred to it under AS 23.40.215.

5. AS 23.40.215 provides, in part:

(a) The monetary terms of any agreement entered into under AS 23.40.070 - 23.40.260 are subject to funding through legislative appropriation.

(b) The Department of Administration shall submit the monetary terms of an agreement to the legislature within 10 legislative days after the agreement of the parties, if the legislature is in session, or within 10 legislative days after the convening of the next regular session. The legislature shall advise the parties by concurrent resolution if it approves or disapproves of the monetary terms within 60 legislative days after the agreement is submitted to the legislature. The approval of the monetary terms of an agreement under this subsection is a nonbinding, advisory expression of legislative intent. If within 60 legislative days after the agreement is submitted the legislature advises the parties by concurrent resolution that it disapproves the monetary terms of the agreement, the parties may resume negotiations.

. . . .

6. The legislature disapproved the pay increase that had been referred to it as a monetary term, but rather than act by concurrent resolution as set out in AS 23.40.215(b), the legislature adopted language in the State operating budget.

7. If the legislature disapproves the monetary terms, AS 23.40.215(b) permits the parties to return to the bargaining table. The parties, however, disagree about whether they are required to return to the table before initiating impasse proceedings. The IBU believes that it may conduct a strike vote under AS 23.40.200. The State’s position is that the parties have not met to negotiate to "salvage" the agreement and, until they do, they are not at impasse.

8. AS 23.40.200 divides employees into three strike classes according to their work and sets forth the requirements for exercising any right to strike or, alternatively, to interest arbitration. The statute provides, in part:

(a) For purposes of this section, public employees are employed to perform services in one of the three following classes:

(1) those services which may not be given up for even the shortest period of time;

(2) those services which may be interrupted for a limited period but not for an indefinite period of time; and

(3) those services in which work stoppages may be sustained for extended periods without serious effects on the public.

(b) The class in (a)(1) of this section is composed of police and fire protection employees, jail, prison, and other correctional institution employees, and hospital employees. Employees in this class may not engage in strikes. Upon a showing by a public employer or the labor relations agency that employees in this class are engaging or about to engage in a strike, an injunction, restraining order, or other order which may be appropriate shall be granted by the superior court in the judicial district in which the strike is occurring or is about to occur. If an impasse or deadlock is reached in collective bargaining between the public employer and employees in this class, and mediation has been utilized without resolving the deadlock, the parties shall submit to arbitration to be carried out under AS 09.43.030.

(c) The class in (a)(2) of this section is composed of public utility, snow removal, sanitation, and educational institution employees other than employees of a school district, a regional educational attendance area, or the state boarding school. Employees in this class may engage in a strike after mediation, subject to the voting requirement of (d) of this section, for a limited time. The limit is determined by the interests of the health, safety, or welfare of the public. The public employer or the labor relations agency may apply to the superior court in the judicial district in which the strike is occurring for an order enjoining the strike. A strike may not be enjoined unless it can be shown that it has begun to threaten the health, safety, or welfare of the public. A court, in deciding whether or not to enjoin the strike, shall consider the total equities in the particular class. "Total equities" includes not only the impact of a strike on the public but also the extent to which employee organizations and public employers have met their statutory obligations. If an impasse or deadlock still exists after the issuance of an injunction, the parties shall submit to arbitration to be carried out under AS 09.43.030.

(d) The class in (a)(3) of this section includes all other public employees who are not included in the classes in (a)(1) or (a)(2) of this section. Employees in this class may engage in a strike if a majority of the employees in a collective bargaining unit vote by secret ballot to do so.

. . . .

9. The Alaska Supreme Court has interpreted AS 23.40.200 to require impasse before a strike. Alaska Public Employees Ass’n v. State, 776 P.2d 1030, 1031 (Ak 1989). The parties concur that impasse is required before a strike, but dispute whether an impasse is needed before a labor organization may conduct a strike vote under AS 23.40.200(d). We believe that it is.

10. 8 AAC 97.300(a)(1) allows a labor organization to conduct a strike vote after "filing with the labor relations agency and serving the public employer with a written notice that the parties are at impasse and the labor or employee organization intends to conduct a strike vote."

11. The only procedural mechanism to challenge that vote appears in 8 AAC 97.300(e), which states,

Any objection to the conduct of the strike vote must be filed with the labor relations agency within five calendar days of service of written notice of the results of the election. The labor relations agency will investigate the objection and, based on its findings, rule on the objection and order any other appropriate action including a new election.

8 AAC 97.300, which was effective on July 22, 1993, is a significant change from the previous 2 AAC 10.280, which provided for this Agency to conduct the strike vote after determining whether efforts to mediate the dispute were exhausted and whether a strike vote was proper.

12. While the new procedure transfers responsibility to the labor organization to conduct the strike vote, the Agency does retain some oversight. The procedure is a fairly open one. 8 AAC 97.300 requires the labor organization to provide notice to this Agency and to the employer that the parties are at impasse and the date, time, and place of the election. Providing notice of impasse provides an opportunity for an employer to file an unfair labor practice claim if it believes, as the State does here, that the parties are not yet at impasse and the labor organization has refused to bargain. IBU, without conceding the absence of impasse in the case, has argued that an impasse, while a necessary condition to a strike, does not need to precede the strike vote. However, there is no point to requiring notice of an impasse without also requiring that the parties be at impasse. The strike is a labor organization’s principal economic weapon at impasse. Alaska public employees, like most public sector employees, however, do not have an unconditional right to use this economic weapon. One of the conditions established by law is a secret ballot vote by the members of the bargaining unit. AS 23.40.200(c). Allowing the labor organization to conduct the vote at any time during the negotiations would subvert the process. The IBU appears to want the strike vote to improve its posture in negotiations. Further negotiating, however, could result in significant changes to proposals, tentatively agreed provisions, and bargaining postures between the vote and the time the union actually called the strike. These changes could have an impact on the way the unit members vote at the strike vote election. It is therefore important that the strike vote authorizing the strike follow impasse. We therefore hold that impasse must precede notice of impasse and initiation of the strike vote procedures under 8 AAC 97.300.

13. We have stated that, "A finding of impasse requires a determination that meaningful progress is not likely to be made on mandatory subjects of bargaining." Alaska State Employees Ass'n v. State of Alaska, Decision & Order No. 178, at 13 (1994), quoting Alaska State Employees Ass'n v. State of Alaska, SLRA Order & Decision No. 124 (Sept. 14, 1989).

14. To determine whether meaningful progress is likely to be made on mandatory subjects of bargaining, we have looked at the factors named in the principal NLRB case addressing impasse, Taft Broadcasting Co., 163 N.L.R.B. 475, 64 L.R.R.M.(BNA) 1386 (1967).¹ That case states,

Whether a bargaining impasse exists is a matter of judgment. The bargaining history, the good faith of the parties in negotiations, the length of the negotiations, the importance of the issue or issues as to which there is disagreement, the contemporaneous understanding of the parties as to the state of negotiations, are all relevant factors to be considered in deciding whether an impasse in bargaining existed.

Id., at 478, 64 L.R.R.M.(BNA) at 1388; Alaska State Employees Ass'n v. State of Alaska, Decision & Order No. 178, at 13; see generally 1 Patrick Hardin, The Developing Labor Law 692--696 (3d ed. 1992).

15. The determination of impasse or deadlock is essentially factual, depending on the circumstances of the parties' bargaining. Alaska State Employees Ass'n v. State of Alaska, Decision & Order No. 178, at 13. The State and IBU have negotiated at length in apparent good faith since January of 1993. They mediated in the fall of 1993 and reached three separate tentative agreements, two of which the IBU membership rejected and the monetary terms of the last was not approved by the legislature. Admittedly, these circumstances narrow the options available to the parties, but it is not clear that the parties have exhausted their options. The State’s representative believes the parties can salvage the agreement. The parties need to explore the options they might have. Circumstances in this case have changed significantly since the parties were last in bargaining. The legislature’s failure to approve the negotiated pay raise is probably the most significant change. In addition, the administration has changed since negotiation of the last tentative agreement. As one writer states, "almost any changed condition or circumstance that renews the possibility of fruitful discussion will terminate the suspension of the duty to bargain." 1 Patrick Hardin, supra 697, citing Gulf States Mfg. v NLRB, 704 F.2d 1390, 113 L.R.R.M. (BNA) 2789, 2796 (5th. Cir. 1983). The parties need an opportunity in negotiations to respond, even briefly, to these changes.

16. Because the parties are not at impasse, the IBU’s refusal to bargain violates AS 23.40.110(c)(2). In addition, a strike vote under AS 23.40.200 is premature.

17. The State has argued that stopping the strike vote is necessary to remedy the unfair labor practice. However, the decision that a statutory strike vote must follow impasse does not prohibit a labor organization from using a straw vote as a bargaining tool. A labor organization can poll its membership on this or other subjects related to bargaining without violating AS 23.40.110. The usual remedy to a refusal to bargain unfair labor practice is to order the party to return to bargaining. The good faith requirement does not prohibit use of the threat of strike as a tool in bargaining. But, unless the election follows impasse, it will not satisfy the requirement of a secret ballot election in AS 23.40.200. For these reasons we do not bar the IBU’s election. It may not be used, however, to meet the requirement of a strike vote election in AS 23.40.200.

18. Timing can be a critical element in the effective use of economic weapons. We will therefore reserve jurisdiction in the event that there are delays or that other disputes arise as the parties return to negotiations.

ORDER

1. The State of Alaska and the Inlandboatmen’s Union of the Pacific, Alaska Region, have not reached impasse or deadlock in their negotiations for an agreement.

2. We therefore find, by refusing to bargain, the Inlandboatmen’s Union of the Pacific, Alaska Region, has violated AS 23.40.110(c)(2), and the IBU is ordered to CEASE AND DESIST from its refusal to bargain with the State until the parties reach impasse.

3. We reserve jurisdiction in the event that disputes arise on the implementation of this order.

4. 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

Alfred L. Tamagni, Sr., Chair

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, 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. Inlandboatmen’s Union of the Pacific, Alaska Region, dated and filed in the office of the Alaska Labor Relations Agency in Anchorage, Alaska, this 16th day of June, 1995.

Victoria D. Scates

Administrative Clerk III

This is to certify that on the 16th day of June, 1995, a true and correct copy of the foregoing was mailed, postage prepaid to

Bob Provost, IBU, Alaska Region

Lawrence Schwerin, Schwerin,et.al Kathleen Strasbaugh, Dept. of Law Art Chance, State

Signature

¹8 AAC 97.450(b) provides:

Relevant decisions of the National Labor Relations Board and federal courts will be given great weight in the decisions and orders made under this chapter and AS 23.40.070 -- 23.40.260 . . . .

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