CASE NO. 93-180-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. 93-180-ULP

DECISION AND ORDER NO. 192

This matter was considered on the record, including the briefs, evidence, and tapes of proceedings on February 27, 1995, in Anchorage, Alaska, by a panel of the Alaska Labor Relations Board, vice chair Stuart H. Bowdoin and members James W. Elliott and Karen J. Mahurin. Hearing examiner Jan Hart DeYoung presided. The record closed on February 27, 1995.

Appearances:

James A. Gasper, Jermain, Dunnagan & Owens, for complainant Public Safety Employees Association; and Art Chance, Labor Relations Analyst, for respondent State of Alaska, Department of Transportation and Public Facilities.

Digest:

The reduction in force of an airport safety officer in Cold Bay, Alaska, was not a unilateral transfer of work outside of the unit violating the duty to bargain in good faith in AS 23.40.110(a)(5).

DECISION

This case is before the Agency for the second time. The dispute between the Public Safety Employees Association and the State of Alaska involves the lay-off of the sole airport safety officer in Cold Bay, Alaska, Kenneth Kreitzer, and reassignment of his duties to a member of the labor, trades and crafts unit, represented by Public Employees Local 71. Following a hearing on November 4, 1993, the Agency issued decision and order no. 173, holding,

Transfer of work outside of a bargaining unit can be an unfair labor practice. In this case whether the State unilaterally assigned work outside of the unit in violation of AS 23.40.110 will require the interpretation of contract clauses, such as the management rights, integration, and lay-off clauses of the agreement. Questions of contract interpretation are particularly well-suited to the arbitration forum. Where possible, when the Agency's jurisdiction under AS 23.40.110 overlaps with that of an arbitrator under a collective bargaining agreement grievance arbitration clause, the Agency will defer to arbitration.

The Agency referred the matter to arbitration. Afterwards, the arbitrator determined that the case was not properly before him, and PSEA asked for additional proceedings before this Agency.

After considering the record as supplemented on February 27, 1995, we conclude that the State’s reduction in force to eliminate the airport safety officer position held by Kenneth Kreitzer in Cold Bay complied with the terms of the parties’ collective bargaining agreement and did not constitute an unfair labor practice.

Findings of Fact

1. The Public Safety Employees Association (PSEA) has been the certified, exclusive representative of the Regularly Commissioned Public Safety Officers (PSOU) unit of State employees since 1978. Public Safety Employees Ass’n v. State, Decision & Order No. 173, at 2 (April 25, 1994).

2. PSEA and the State were parties to a collective bargaining agreement between January 1, 1990 and December 31, 1991. The parties maintained the terms of the agreement during negotiations for a successor. Id. The parties did reach a successor agreement, which became effective retroactively and whose duration is from January 1, 1992, through December 31, 1995.

3. The terms of the collective bargaining agreements at issue in this case did not change materially from the 1990-1991 agreement to the successor. The text of the terms quoted below is from the 1992-1995 agreement.

a. Definitions

Bargaining Unit in this agreement means the Public Safety Officers Unit (PSOU), as described in and subject to the provisions of Article 15, Section 1, and consisting of those classifications deemed appropriate by mutual consent or additional classifications deemed appropriate by the Alaska Labor Relations Agency.

Agreement § 2b (1992/1995), Exh. 8, at 2; Agreement § 2b (1990/1991), Exh. 1, at 1.

b. Management’s rights

Except--and only to the extent-- that specific provisions of this Agreement expressly provide otherwise, it is hereby mutually agreed that the Employer has, and will continue to retain, regardless of the frequency of exercise, rights to operate and manage its affairs in each and every respect.

Nothing in this Article shall be considered as superseding those rights granted to the Association in the articles and/or amendments of this Agreement.

Agreement Art. 6 (1992/1995), Exh. 8, at 3; Agreement Art. 6 (1990/1991), Exh. 1, at 7.

c. Layoff/rehire

Should it be necessary to reduce the number of Court Services Officers within the bargaining unit, that member who is lowest on the Court Services Officer seniority list should be laid off first. Should it be necessary to reduce the number of other members within the bargaining unit, for the Department of Public Safety, that member who is lowest on the Division’s bargaining unit seniority list shall be laid off first. For layoff purposes, any members in the Department of Public Safety, but outside of the Divisions of Alaska State Troopers, Fish and Wildlife Protection, or Fire Prevention, will be considered to be in the division to which previously assigned. For the Department of Transportation and Public Facilities, that member who is lowest on the respective airport bargaining unit seniority list shall be laid off first.

Should it be necessary to reduce the number of members within a classification, that member who is the lowest within a classification seniority list for the employing Division, for the Department of Public Safety, or that member who is lowest on the classification seniority list for the respective airport classification seniority list, shall be reduced to the next lower job classification.

In such instances, the member who has been reduced in classification shall have his/her name placed on a layoff list for the classification from which he/she was removed. When a position within the higher classification becomes available for filing that member highest on the classification layoff list shall be offered promotion to the classification before any other eligibles are considered.

The names of members who have been separated from the unit because of a reduction in force shall be placed on a layoff list for a period of no more than two (2) years. That member with the highest bargaining unit seniority at the time of separation shall be highest on the layoff list. When a position in the classification becomes available for filling, the position shall be offered first to the individual highest on the layoff list.

Agreement § 10 (1992/1995), Exh. 8, at 4-5; Agreement Art. II, § 10 (1990-1991), Exh. 1, at 26.

d. Complete agreement

The Agreement expressed here in writing constitutes the entire agreement between the parties and no oral statement shall add or supersede any of its provisions.

The parties acknowledge that during the negotiations which preceded this Agreement, each had the unlimited right and opportunity to make proposals with respect to any subject or matter not removed by law from the area of collective bargaining and that the understandings and agreements arrived at by the parties after the exercise of that right and opportunity are set forth in this Agreement; each voluntarily and unqualifiedly waives the right, and each agrees that the other shall not be obligated to bargain collectively with respect to any subject or matter not specifically referred to or covered in this Agreement, even though such subjects or matters may not have been within the knowledge or contemplation of either or both of the parties at the time they negotiated and signed this Agreement.

The parties further agree that notwithstanding the above Section, maintenance of contract matters, should they develop, may be negotiated under the supplemental agreement provision.

Agreement Art. 34 (1992/1995), Exh. 8, at 7-8; Agreement Art. 34 (1990/1991), Exh. 1, at 72-73.

4. The State through its Department of Transportation and Public Facilities maintains an airport at Cold Bay, Alaska, which provides landing facilities for commercial air carriers. These carriers may have passengers subject to security screening before boarding. Public Safety Employees Ass’n v. State, Decision & Order No. 173, at 4. In addition, the State provides crash, fire, and rescue response for air carriers at Cold Bay Airport under Federal Aviation Administration regulations. Id., at 4.

5. Between sometime in the early 1970's until July 1, 1992, the State assigned a full-time employee as a fire fighter/guard or an airport safety officer (ASO) at the Cold Bay Airport facility. Fire fighter/guard was the job title used before ASO. Id., at 4.

6. Airport safety officers, including Ken Kreitzer when he worked as an ASO II, are in the PSO bargaining unit. Id., at 2 & 5.

7. Ken Kreitzer was hired by the State as an ASO I on August 19, 1985, and became an ASO II upon completion of probation. Kreitzer was assigned to the Cold Bay ASO position from August 19, 1985, until July 1, 1992, when he was laid off. Id., at 4-5.

8. Kreitzer's job duties appear in the State's class specification for ASO I and II positions. His principal responsibilities were to perform crash, fire, rescue, law enforcement, and safety functions at the airport. One difference between the class specification and Kreitzer's duties was that Kreitzer was not required to obtain Alaska Police Standards Council certification as a police officer, which is required for international airports. He remained an uncertified ASO II, notwithstanding the requirements of the State's amended class specification for ASO's. Kreitzer was responsible to perform these job duties from the time of his employment as an ASO until he was laid off. The duties include security patrol; passenger screening; and checking runway, taxiway, ramp and apron for debris, animals or hazardous materials; and crash, fire, and rescue responsibilities. Performing these duties would include routine security patrol of airport grounds; enforcing of State and federal laws, including FAA regulations; insuring adherence to safety rules; investigating suspicious persons or activities; assisting customs, public health, and immigration officials; operating two-way communications; and preparing reports. Kreitzer's crash, fire, and rescue responsibilities included operating apparatus and training other employees including the transportation maintenance leader. Id., at 5.

9. The airport manager, a transportation maintenance leader, was back-up for Kreitzer on all crash, fire, and rescue and security duties. For security duties, however, it was usually possible to plan work shifts so that back-up was not needed. Id., at 5.

10. Bob Lee was the airport manager at Cold Bay Airport upon Ken Kreitzer's assignment as an ASO in August 1985. Bob Lee performed Ken Kreitzer's annual evaluation. Id., at 6.

11. Gerry Dias became the airport manager at the Cold Bay Airport on June 16, 1989, and succeeded Lee as Kreitzer's supervisor. Dias's title is that of transportation maintenance leader III, a classification in the labor, trades and crafts bargaining unit represented by Public Employees Local 71. Id., at 6.

12. The class specification for the transportation maintenance leader lists snow removal and the maintenance, repair and operation of equipment at the airport as the primary responsibilities. The duties include determining and performing maintenance priorities, snow removal, patching and sealing airport surfaces, record keeping, maintaining personnel records, ordering supplies, performing or supervising repair and maintenance of equipment, and checking runway braking and safety conditions. While not stated in the class specification, Dias performs some law enforcement duties. Even before Kreitzer was laid off, Dias performed some law enforcement duties by providing back-up for Kreitzer. Dias also covered these duties on Kreitzer's two days off per week. Id., at 6.

13. Upon assuming the airport manager position, Dias attended a police training course conducted at the Department of Public Safety’s Sitka academy. Dias also attended a training program conducted by the Federal Aviation Administration in Oklahoma in 1992, after Kreitzer was laid off, to learn airport security techniques and relevant federal aviation law. In his capacity as airport manager, Dias has been granted police powers under AS 02.15.230(a). He had no such powers before becoming the airport manager. Id., at 6-7.

14. On at least two occasions since July 1, 1992, police-certified ASO's regularly assigned to the Anchorage International Airport have been detailed "TDY" to perform ASO duties at Cold Bay Airport during Gerry Dias's absence. These "TDY" assignments have totalled between 3-4 weeks of Anchorage ASO time. Id., at 7.

15. Since Kreitzer's layoff Dias has assumed responsibility for law enforcement at Cold Bay Airport. These law enforcement responsibilities include passenger screening and responding to passenger violence or piracy. In addition, Dias now also coordinates, supervises, and performs all crash, fire, and rescue operations at the airport formerly performed by Kreitzer as an ASO. Id., at 7.

16. Upon being laid off, Kreitzer was placed on the State's layoff list and was eligible for rehire in other State positions consistent with his class, location, and status. Id., at 6. By the date of the second hearing, Kreitzer had been employed by the State as a youth counselor.

17. PSEA did not grieve the layoff or the issue of reassignment of work outside of the unit. Id., at 7.

18. Because we have not found that the State committed an unfair labor practice in this case, we do not address the question of a remedy and do not address the financial loss suffered by Kenneth Kreitzer after his position was eliminated.

19. On January 6, 1993, PSEA filed an unfair labor practice charge against the State alleging violations of AS 23.40.110(a)(1) and (5).

20. The Agency investigated the charge and, finding that probable cause supported the charge, issued a notice of accusation on April 1, 1993.

21. The Agency conducted a hearing on November 4, 1993, and issued a decision on April 25, 1994, referring the parties’ dispute to arbitration. The Agency reserved jurisdiction in the event that the matter was not resolved in arbitration.

22. The parties proceeded to arbitration and on December 31, 1994, arbitrator James M. Litton issued his decision denying the grievance for the reason that PSEA had not filed a timely grievance under the agreement. Because PSEA did not file a timely grievance, the arbitrator concluded he did not have authority to act.

23. On January 12, 1995, PSEA filed a motion for further proceedings before the Agency. On February 27, 1995, this Agency conducted a second hearing on the dispute, allowing the parties to supplement the record.

Conclusions of Law

1. The State of Alaska is a public employer under AS 23.40.250(7), and the Public Safety Employees Association (PSEA)is a labor organization under AS 23.40.250(5). The Alaska Labor Relations Agency has jurisdiction to consider unfair labor practice complaints under AS 23.40.110.

2. Under 8 AAC 97.350(f) the complainant has the burden to prove each element necessary to its cause by a preponderance of the evidence.

3. A public employer or its agent may not

refuse to bargain collectively in good faith with an organization which is the exclusive representative of employees in an appropriate unit, including but not limited to the discussing of grievances with the exclusive representative.

AS 23.40.110(a)(5).

4. In Public Safety Employees Ass’n v. State, Decision & Order No. 173, we commented that, generally, bargaining is required before an employer may assign work outside of a bargaining unit. Failing to bargain before assigning work out of the unit can be an unfair labor practice under the similar provision, section 8(a)(5), of the National Labor Relations Act. See e.g., Road Sprinkler Fitters Local Union No. 669 v. National Labor Relations Board, 676 F.2d 826, 831, 110 L.R.R.M.(BNA) 2125, at 2128 (D.C. Cir. 1982).

5. We also noted, however, that failure to bargain the reassignment is not an unfair labor practice if the work was not performed exclusively by unit employees and the employer did not depart significantly from past practice. AFSCME Council 13 v. Pennsylvania Labor Relations Board, 616 A.2d 135, 139, 143 L.R.R.M.(BNA) 2043, 2044 (Pa. 1992); see generally 1 Patrick Hardin, The Developing Labor Law 899 (3d ed. 1992).

6. We found that the work Kreitzer performed in Cold Bay was not performed exclusively by PSOU members. The supplemental testimony of Kreitzer does not change this conclusion. The facts remain that, even when Kreitzer worked at the Cold Bay Airport, Dias in the labor, trades, and crafts unit performed some of the security and safety work in a back-up capacity. In addition, we found that the State had not departed significantly from past practice. It reduced its work force and, due to the remoteness of the work site, it shifted a part of the work out of the unit. The State continues to assign PSOU members to the site to perform security on a short term basis, which shows that security and safety work remains very much PSOU work. These facts support the conclusion that reassigning the work at Cold Bay Airport was not unilateral action in violation of the obligation to bargain in AS 23.40.110(a)(5). Road Sprinkler Fitters Local Union No. 669 v. National Labor Relations Board, 676 F.2d 826, 110 L.R.R.M.(BNA) 2125.

7. However, in our previous decision we declined to apply another factor bearing on whether the employer violated AS 23.40.110(a)(5) -- the terms of the collective bargaining agreement. We had concluded that issues of contract interpretation were more appropriate for determination by an arbitrator under the parties’ contract grievance procedure and therefore referred PSEA to arbitration.

8. Because the arbitrator concluded he was without jurisdiction to act, we now examine the terms of the parties’ agreement. PSEA argues in its supplemental brief that, by failing to follow the layoff term of the contract, the State changed that term unilaterally and thereby violated AS 23.40.110(a)(5). We do not agree with the rule this argument implies that every contract breach represents a unilateral change of the contract. Nevertheless, there is no evidence that the State departed from this term of the agreement. The term does not require notice to PSEA. It addresses order of layoff and rehire rights, which appear to have been followed by the State when it laid off Kreitzer. The 1990-1991 agreement and the terms of the 1992-1995 agreement in the record do not restrict the State’s right to assign work. Generally, management has wide latitude to assign work absent restriction in the contract. Frank Elkouri & Edna Elkouri, How Arbitration Works 500 & 547-552 (4th ed. 1985) (assignment of work outside of the bargaining unit). The absence of any restrictions in the agreement and the management rights clause in the parties’ agreement support the conclusion that the State’s action was consistent with the contract. See also Fairbanks Police Chapter, Alaska Public Employees Ass’n v. City of Fairbanks, Decision & Order No. 155 (Feb. 26. 1993) (police staffing level decisions are not a mandatory subject of bargaining).

9. We conclude that past practice and the parties’ agreement support the conclusion that work was not transferred out of the unit in violation of AS 23.40.110(a)(5).

10. We have applied the factors considered by the National Labor Relations Board when reviewing charges that work was assigned out of the unit without bargaining in violation of section 8(a)(5). However, we have been troubled by this case from the outset. This Agency’s jurisdiction to address unfair labor practices is the method by which this Agency polices the Public Employment Relations Act. The Act’s primary goal is for public employees to participate in decision making over the terms and conditions of their employment for better administration of government and to insure that labor disputes and strife do not interfere with the work of the public. AS 23.40.070. One of the tools in PERA to accomplish this goal is the requirement of a grievance clause with binding arbitration in every collective bargaining agreement. AS 23.40.210. Contract disputes, employee grievances, and other more or less routine matters are handled under these clauses. When the grievance clause is inadequate or procedures break down, the Act provides for unfair labor practices to be charged with the Agency under AS 23.40.110. Subsection (a) of AS 23.40.110 allows complaints about employers’ actions that interfere with PERA in a fundamental way. An employer’s interference with organizing is an example of interference with rights under PERA that threatens the system of collective bargaining. See AS 23.40.110(a)(1). Employer dominated unions prohibited in AS 23.40.110(a)(2) are another threat to self-determination and employee participation in bargaining. Retaliation or discrimination against persons who exercise collective bargaining rights could have a chilling effect on the exercise of those rights which, again, threatens collective bargaining. AS 23.40.110(a)(3). Retaliation against persons who participate in actions before this Agency could also have a chilling effect against the exercise of those rights. AS 23.40.110(a)(4). Finally, conduct that prevents or interferes with contract bargaining strikes at the heart of self-determination. AS 23.40.110(a)(5). These provisions allow the Agency to respond to fundamental threats to realization of PERA’s goals.

11. Turning to the facts of this case, we see that the State, apparently for budget reasons, eliminated the ASO at a small airport and assigned the ASO’s duties to an airport manager in another unit. The action was not done to avoid higher wages, to undercut the PSEA, or to privatize or otherwise divert the work from the bargaining unit -- issues often involved in assignment of work cases that violate the duty to bargain in good faith. See e.g., Road Sprinkler Fitters Local Union No. 669 v. National Labor Relations Board, 676 F.2d 826, 110 L.R.R.M.(BNA) 2125 (diversion of work from bargaining unit to nonrepresented workers); AFSCME Council 13 v. Pennsylvania Labor Relations Board, 616 A.2d 135, 143 L.R.R.M.(BNA) 2043 (transfer of inspection work from state employees to nonrepresented county workers); St. John’s General Hospital, 281 N.L.R.B. No. 157, 124 L.R.R.M.(BNA) 1311 (1986) (reassigning nursing duties to nonrepresented secretaries). The State’s action was consistent with the conclusion that there was not enough work for a full time ASO at this airport and the duties could be performed by another employee at the site, the airport manager. The State has not diverted security or crash, fire, and rescue work out of the unit or to nonunion labor. The work is still performed at other, larger airports by ASO’s. The real issue in this case is not the damage to collective bargaining or relations between PSEA and the State. The real issues appear to be with Kreitzer’s loss of his position and with compensating him for his injury related to that loss. This is the kind of problem that should be addressed under the parties’ agreement. Stated another way, the policy of self-determination and collective bargaining is better served when the parties resolve their own disputes whenever possible, such as through the arbitration clause in their agreement. This Agency should interfere in these relationships only when there is a material breakdown or one of the parties has committed an act that threatens collective bargaining. This Agency should not be a substitute or alternative for arbitration.

12. It is important to distinguish this case from Public Safety Employees Ass’n v. Department of Public Safety, State of Alaska, SLRA Order & Decision No. 103 (Mar. 25, 1987), affirmed in part in 799 P.2d 315, 135 L.R.R.M.(BNA) 3137 (Alaska 1990) (affirming refusal to defer and remanding issue whether unfair labor practice finding was supported by substantial evidence to superior court). In this case the State reclassified all trooper recruits to "law enforcement college interns" and moved them from the bargaining unit represented by PSEA to the general government unit. The State wanted a pool of qualified applicants for vacancies from which to hire but did not want to insure employment after the training. The reclassification also resulted in lower wages for the reclassified workers during their training. In this case, on the other hand, the State has not transferred work out of the unit to a lower wage work force to avoid obligations in a collective bargaining agreement. There is no evidence suggesting that the State acted in any way but in good faith when it determined to eliminate the airport safety officer position in Cold Bay.

13. We have addressed this case under AS 23.40.110(a)(5). The case was also referred under AS 23.40.110(a)(1), which prohibits interference, restraint or coercion against the exercise of rights guaranteed under AS 23.40.080. For the reasons stated in our discussion above, we conclude that the State did not interfere with, restrain or coerce the exercise of the rights to self-organize, and form, join, or assist an organization in bargaining collectively or engaging "in concerted activities for the purpose of collective bargaining or other mutual aid or protection." AS 23.40.080.

ORDER

1. The State of Alaska did not commit an unfair labor practice under AS 23.40.110 when it eliminated the airport safety officer position at the Cold Bay Airport;

2. The Public Safety Employees Association’s complaint in this matter is DISMISSED;

3. 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, in the alternative, serve each employee affected personally. 8 AAC 97.460.

THE ALASKA LABOR RELATIONS AGENCY

Stuart H. Bowdoin, Vice 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 Decision and Order No. 192 in the matter of PUBLIC SAFETY EMPLOYEES ASSOCIATION vs. STATE OF ALASKA, DEPARTMENT OF TRANSPORTATION AND PUBLIC FACILITIES, CASE NO. 93-180-ULP, dated and filed in the office of the Alaska Labor Relations Agency in Anchorage, Alaska, this 26th day of September, 1995.

Victoria D. J. Scates

Administrative Clerk III

This is to certify that on the 26th day of September, 1995, a true and correct copy of the foregoing was mailed, postage prepaid, to

James Gasper, PSEA

Art Chance, State

Signature

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