CASE NO. 97-716-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. 97-716-ULP

DECISION AND ORDER NO. 243

By agreement of the parties, this matter was heard on the basis of the written record. The panel for this matter consists of chair Alfred L. Tamagni, Sr., and members Robert Doyle and Karen J. Mahurin. Hearing examiner Mark Torgerson presided. The record closed on December 18, 1998.

Appearances:

Kent Durand, labor relations analyst, for complainant State of Alaska (State); Don Clocksin, attorney, for respondent Inlandboatmen's Union of the Pacific, Alaska Region (IBU).

Digest:

The IBU's delay in collective bargaining negotiations was not unreasonable because it had a right to delay the negotiating process to conduct a pre-impasse strike vote, under Inlandboatmen's Union of the Pacific v. State of Alaska, 3 AN-95-5882 CI (February 14, 1997).

PROCEDURAL HISTORY

A hearing was conducted on June 12, 1995, at which the parties presented testimony and other evidence. The hearing addressed an unfair labor practice complaint the State filed against IBU. See State v. Inlandboatmen's Union of the Pacific, Decision and Order No. 189 (June 15, 1995).

The State contended the IBU committed an unfair labor practice by refusing to return to the bargaining table after the Alaska Legislature turned down the monetary terms of the parties' tentative agreement, pursuant to AS 23.40.215. Subsequent to the legislature's refusal to approve the monetary terms, IBU Regional Director Bob Provost sent a letter to agency hearing officer Jean Ward stating IBU considered the parties at impasse and requesting authorization to conduct a strike vote. (B. Provost May 17, 1995 letter to J. Ward; Hearing One Exhibit H). The State responded by inviting IBU back to negotiations on the dates the parties had reserved. (Hearing One Exhibit I).

Provost responded by writing then Commissioner of Administration Mark Boyer that he too looked "forward to meeting . . . 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 May 18, 1995 letter to M. Boyer; Hearing One Exhibit K). However, IBU refused to meet on May 31, 1995, the next scheduled negotiations date. In a May 30, 1995 letter to Boyer, Provost wrote:

Given the State's position, we want to be sure we understand the effect of the appropriations bill. As we understand the bill, AMHS¹ 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 May 30, 1995 letter to M. Boyer; Hearing One Exhibit L).

The parties disputed whether they were required to return to the bargaining 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." State of Alaska v. Inlandboatmen's Union of the Pacific, Alaska Region, Decision and Order No. 189 at 6 (June 16, 1995).

We found that "[t]o the date of the [June 12, 1995] hearing at least, the IBU had refused to bargain." Id. at 5. We concluded that the parties were not at impasse; therefore, IBU had committed an unfair labor practice by refusing to bargain under AS 23.40.110(c)(2). Further, we concluded that because the parties were not at impasse, a strike vote under AS 23.40.200 was premature. We ordered the IBU to cease and desist from its refusal to bargain, until the parties did reach impasse.

The IBU appealed to the Alaska Superior Court. In Inlandboatmen's Union of the Pacific v. State of Alaska, 3 AN-95-5882 CI, the Honorable Rene J. Gonzalez reversed our decision on the strike vote issue, but did not address the impasse issue:

This court hereby declares that the agency cannot prevent a pre-impasse strike vote by a union which would satisfy the requirements of AS 23.40.200(d) for the initiation of a strike following an impasse. Furthermore, the dispute is hereby remanded to the Agency for a determination of whether, considering that the Union is entitled to implement a reasonable delay in negotiations in order for it to conduct a strike vote, the Union has otherwise committed an unfair labor practice. In such an analysis, the Agency must consider the definition of "collective bargaining" under AS 23.40.250(1).

Id. at 16.

This consists of a 12 day period. While the Agency found a refusal to bargain, this alone does not constitute an unfair labor practice. The agency failed to consider the definition of collective bargaining under AS 23.40.250(1), as it must logically do, in finding that there was a refusal "to bargain collectively in good faith" under AS 23.40.110(c)(2). AS 23.40.250(1) does not require that the parties agree to bargain unequivocally, rather, the parties need only agree to bargain at "reasonable times." The Agency has failed to make a finding that the Union's refusal to bargain from May 30, 1995 and until a strike vote can be conducted constitutes an "unreasonable" refusal. In conducting its analysis, the Agency would have to consider that the Union is entitled to conduct a pre-impasse strike vote (which it validly may, as discussed above). Any reasonable delay in negotiations requested by the Union so that it may conduct a pre-impasse strike vote cannot be considered as time during which the Union refused to bargain in good faith, for the Union is entitled to take such a vote.

Id. at 15.

ISSUES

1. Does the record contain the evidence needed to decide the February 14, 1997 remand from the Alaska Superior Court?

2. If additional evidence is needed, should the case be set for oral hearing?

3. If no additional evidence is needed, did the IBU commit an unfair labor practice under the standard set by Superior Court Judge Gonzalez in Inlandboatmen's Union of the Pacific v. State of Alaska, 3 AN-95-5882 CI (February 14, 1997)?

FINDINGS OF FACT

Upon consideration of the record, the panel finds the facts as follows:

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), Exhibit 1 at 1; Exhibit H at 1).³

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. The membership of the IBU rejected the agreement and the State requested to return to negotiations. (Tentative Agreement (Oct. 29, 1993), Exhibit 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), Exhibit C.)

5. The parties returned to the negotiating table. On June 22, 1994, they again reached a tentative agreement. (Tentative Agreement (June 22, 1994), Exhibit 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, 1994 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), Exhibit 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), Exhibit 1 at 40). The additional language only states that the parties may act as the statutes allow.

10. During negotiations the parties discussed the possibility that the legislature would not approve the monetary terms. (Exhibit 4, at 3; M. 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 bargaining representative, to reserve dates for negotiations in the event the legislature recessed without approving the contract. Doyle agreed to reserve several dates. (Exhibits 2, 3, & 9; Exhibits 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), Exhibit 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, May 17, 1995 letter to hearing officer J. Ward; Exhibit H).

14. The State's initial response was to invite the IBU to reenter negotiations on the dates the parties had reserved. (Exhibit I).

15. Provost responded by informing 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 IBU comes to the table with a valid strike vote in hand.

(B. Provost, May 18, 1995 letter to M. Boyer; Exhibit 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, May 30, 1995 letter to M. Boyer; Exhibit L).

17. To the date of the June 12, 1995 hearing, the IBU had refused to bargain.

18. As of the June 12, 1995 hearing, the IBU was still requesting agency approval to proceed to strike vote. During the hearing, Bob Provost, Regional Director for IBU testified as follows:

Q Did you seek a strike vote?

A Yes.

Q Why?

A It's the Union's position that we are at impasse, and I need to know what – where my membership is at, and how they feel about this, and how strong the feelings are. If they're willing to go out on strike, or how strong they feel about our position with the State right now.

(Transcript of June 12, 1995 hearing at 122-123).

19. As of the June 12, 1995 hearing, the IBU had not determined further negotiations would be futile. The IBU left open the option of further negotiations depending on the outcome of the requested strike vote. In his testimony, Provost explained the IBU's position:

A We feel we would be in a better position if we – and there is no guarantee what the membership is feeling, if I am going to get – if we are allowed to proceed with a strike vote. That's up to the membership to decide. If they give me that tool to use, I feel we will be in a better position to – if we decide – the Union executive board decides to sit down, we feel we would be in a much better position, then, to negotiate.

Q Is it your position, as you sit here today, clearly and unambiguously, not your intention ever to return to the table until some further action related to this vote you are seeking?

A That is correct, until some further action is taken, yes.

(June 12, 1995 hearing transcript at 129-130).

20. The Agency issued a decision and order on June 16, 1995. The Agency concluded that the parties were not at impasse, and the IBU had committed an unfair labor practice under AS 23.40.110(c)(2) by refusing to bargain collectively with the State. Finally, the Agency ruled that because the parties were not at impasse, a strike vote was premature. Decision and Order No. 189 at 10; Conclusion of law no. 16.

21. The IBU appealed the Agency's June 16, 1995 decision and order to the Alaska Superior Court on July 13, 1995.

22. On July 16, 1995, the IBU and the State discussed future dates for meeting in contract negotiations. (M. Doyle July 16, 1995 letter to B. Provost).

23. On February 14, 1997, the Alaska Superior Court, the Honorable Rene Gonzalez, reversed the Agency's decision. The court held that the parties need not be at impasse before the IBU is allowed to conduct a strike vote.

24. The State then petitioned for review with the Alaska Supreme Court, contending the superior court should have dismissed the case for mootness. The State wished to avoid the time and expense of a hearing. (K. Strasbaugh May 30, 1997 letter to J. DeYoung). On June 5, 1997, the supreme court denied the petition. The court stated:

The petition for review is denied. In denying the petition, this court expresses no view concerning the possible mootness of the underlying controversy involved in this case. Upon return of the case to the Alaska Labor Relations Agency, the state may move for dismissal if it believes the case is moot; the Alaska Labor Relations Agency will be free to decide the issue of mootness based on the circumstances actually existing at that time.

(June 5, 1997 Order by Jan Hansen, Clerk of the Appellate Courts).

25. The State notified the Agency that the supreme court referred the mootness issue to the Agency. (K. Strasbaugh June 10, 1997 letter to J. Deyoung).

26. The IBU filed a "Motion to Dismiss as Moot" document by facsimile on October 24, 1997.

27. The State filed a response to the mootness motion on November 3, 1997. In it, the State asserted: "Apparently the IBU is willing to plead mootness as long as it has the benefit of Judge Gonzales' decision." It went on to argue:

The state cannot agree to dismissal on the terms set out in the IBU's motion. The case has been moot since 1996. If the IBU does not concede this, then evidence of the conclusion of collective bargaining must be taken. The dismissal must result in the vacation of the superior court order. If it does not, then the parties must proceed to a remand hearing as required in the order. The IBU's assertion of impasse was not true when made, and the superior court's decision cannot be read to countenance falsehood in the bargaining process.

(State's November 3, 1997 Response to Union's Motion to Dismiss for Mootness at 3).

28. At the September 3, 1998 prehearing conference, the IBU withdrew its motion to dismiss for mootness.

29. In its written record hearing brief, the State again asserted that the "case has been moot since at least July 31, 1996 under chapters 4 & 5, SLA 1996, and probably since August 10, 1995, the date of the tentative agreement but as the union will not admit it, the state is entitled to submit evidence . . . ."

DISCUSSION

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). We will discuss the issues as agreed on at the prehearing conference.

I. Whether to conduct an oral hearing.

The IBU argues there is no need for the parties to provide additional evidence. The State contends an oral hearing is necessary to decide whether the IBU committed an unfair labor practice violation. It argues that although the ULP issue could be decided based on facts "already adduced before the agency," the "unions' officials could be subject to more detailed examination on the question of their good faith in asking for a strike vote, as it appears they did not really believe they were at impasse when they declared it." (State's December 15, 1998 Response brief at 9).

We find the state's argument misplaced. On the one hand, we agree that the evidence in the record is sufficient to decide the ULP issue without the need to conduct an oral hearing. On the other hand, we disagree that union officials should be questioned about their good faith in requesting a strike vote because they did not believe they were at impasse. That line of questioning would be irrelevant to the issue before us pursuant to the superior court's remand. The superior court found that whether the parties are at impasse is irrelevant to the union's right to take a strike vote. As we noted, the court said this Agency "cannot prevent a pre-impasse strike vote . . . ." IBU v. State of Alaska, 3 AN-95-5882 CI, at 16. The court held that class three employees like those at IBU "may conduct a fully valid pre-impasse strike vote." Id. at 8.

Thus, the court concluded it was unnecessary to discuss whether or not the parties were actually ever at impasse. Therefore, we find no justification for questioning the union officials or anyone else about the issue of impasse. Furthermore, we find no other reason (and the State has not provided any) to schedule an oral hearing. Accordingly, we will decide the court's remand based on the documents in the record and the parties' arguments.

II. Did the IBU commit an unfair labor practice violation under Judge Gonzalez' standard?

As stated above, Judge Gonzalez remanded the dispute to us to determine "whether, considering that the Union is entitled to implement a reasonable delay in negotiations in order for it to conduct a strike vote, the Union has otherwise committed an unfair labor practice. In such an analysis, the Agency must consider the definition of "collective bargaining" under AS 23.40.250(1)." Id. at 16. AS 23.40.250(1) states:

"[C]ollective bargaining" means the performance of the mutual obligation of the public employer or the employer's designated representatives and the representative of the employees to meet at reasonable times, including meetings in advance of the budget making process, and negotiate in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or negotiation of a question arising under an agreement and the execution of a written contract incorporating an agreement reached if requested by either party, but these obligations do not compel either party to agree to a proposal or require the making of a concession[.]

The State argues that refusing to bargain for a period as brief as five days has been held to constitute an unfair labor practice. (State's response brief at 7, citing to National Labor Relations Board v. Albion Corp., 593 F.2d 936, 939; 100 LRRM 2818 (10^th Cir. 1979). The State also contends that in D&O 178,⁴ we held that even where bargaining is prolonged, the parties must continue to bargain where there is anything to talk about. The state asserts: "Good faith, the parties' prior agreement to negotiate, and the rejection of the monetary terms of the contract all demanded that the union return to the table. To do anything else was unreasonable." (State's response brief at 7).

The State's argument that the parties must continue to talk ignores the holding of the superior court that the IBU has the right to delay negotiations to conduct a pre-impasse strike vote. The IBU was not required to return to the bargaining table until after a reasonable period to conduct the vote. Thus, the IBU was not obligated to talk with the State until after that period ended.

In addition, we reject the state's suggestion that we should consider a five-day period, like the court in Albion, as a standard for determining whether a ULP violation occurred here. In Albion, the tenth circuit Court of Appeals held that an employer violated section 8(a)(5) and (1) of the National Labor Relations Act (NLRA) by refusing to bargain. However, the violation in Albion was not based solely on failure to bargain during a five-day period. The court pointed out that the National Labor Relations Board's decision was based on two factors: 1) the employer's failure to bargain for a five-day period during a critical period just prior to the expiration of the parties' contract and in the face of a threatened strike; and also 2) the employer's dilatory conduct against the union, extending back for a period of at least two months. Although a five-day period may fit situations such as the facts in Albion, we do not find a five-day period appropriate here, as discussed below.

The IBU argues that agency decisions addressing the requirement to "meet at reasonable times" in AS 23.30.250(6) "reflect a liberal attitude toward temporary delays in bargaining, but a lack of forgiveness for refusals to bargain based upon legal errors." (IBU's November 4, 1998 brief). The IBU cites to three agency decisions: Centralized Correspondence Study Education Ass'n v. State, Order and Decision No. 113 (1988); Nenana City Public Schools v. Nenana Education Ass'n, Decision and Order No. 203 (1996); and IBEW Local Union 1547 v. City of Seldovia, Decision and Order No. 208 (1996).

In O&D No. 113, the parties (the State and Centralized Correspondence Study Education Ass'n (CCSEA) had a lengthy negotiation history. The State requested renegotiation (during the window period) in September 1986. The parties did not agree to ground rules until April 1987. They held 27 sessions between April 1987 and October 7, 1987. The parties were unable to meet on approximately seven scheduled sessions. The State Labor Relations Agency (SLRA) found that delays in negotiations were based on mutual agreement or "as a consequence of needs by one party or the other." (O&D No. 113 at 2). The SLRA concluded that this was not unreasonable, "particularly given the context of the negotiating period – a period when the State administration was changing and a substantial number of other collective bargaining agreements were requiring attention by a limited number of State personnel." (Id. at 5-6). O&D No. 113 is distinguishable from this case. The primary delay here was caused by IBU's right to a pre-impasse strike vote.

In D&O 203, the union refused to bargain after a demand to do so during the third year of a five-year contract because it was under the mistaken assumption that its five-year contract with the employer was valid. The Agency concluded that the union committed an unfair labor practice violation because the five-year contract was invalid under AS 23.40.210(a), and the union had an obligation to negotiate at the time requested by the employer.⁵ Thus, the union's mistaken assumption regarding the validity of the five-year contract was no excuse for refusing to bargain during the legally valid final (third) year of the contract. We find D&O 203 distinguishable from this case because here, there is no mistaken assumption about IBU's right to conduct a pre-impasse strike vote.

Finally, the IBU asserts that in D&O 208, "this Agency has held that an employer's two-month delay in commencing bargaining in order to select a bargaining team was not unreasonable and not an unfair labor practice." (IBU brief at 8, citing to D&O 208 at 8-9.) However, we find the facts in D&O 208 are clearly distinguishable from the facts and issue here. This Agency found the employer in D&O 208 was unsure of its bargaining obligations "initially" but also found that employer's responsiveness improved as negotiations progressed. The Agency found the two-month delay to select a bargaining team and start negotiations was not unreasonable under the particular facts of that case. In this case, IBU has not alleged it was unsure of its bargaining obligation; nor did it delay further negotiations to select a bargaining team. IBU and the State had negotiated for a significant period. The only reason IBU stopped negotiating was to conduct a strike vote because of the Alaska Legislature's refusal to fund the economic terms of the parties' tentative agreement.

In summary, we find the cases cited by the parties are distinguishable from the facts before us. Here, the superior court held that IBU had the right to a "reasonable delay" in bargaining, in order to conduct a pre-impasse strike vote. It ordered us to consider the definition of collective bargaining and determine whether IBU refused "unreasonably" to bargain with the State; that is, we must decide if IBU delayed the bargaining process unreasonably. In making our determination, the superior court ruled we must not consider a reasonable delay to conduct a pre-impasse strike vote "as time during which the Union refused to bargain in good faith . . . ." Accordingly, we will decide this matter as required by the superior court's orders.

This Agency has not previously discussed the length of time a party should be allowed to conduct a pre-impasse strike vote. Here, the IBU did not request a specific time in order to conduct the vote. Moreover, there is no evidence regarding the time it may have taken to conduct the vote, or whether the vote was actually taken.⁶ However, under the facts in the record, there was no unreasonable delay in collective bargaining. As we found, and as the superior court pointed out, the IBU refused to bargain from May 30, 1995 "to the date of the June 12, 1995 Agency hearing. Id. This consists of a 12 day period." (Superior Court decision at 15). But the court ruled we must decide, given the union's right to conduct a pre-impasse strike vote, whether IBU's "refusal to bargain from May 30, 1995 and until a strike vote can be conducted constitutes an 'unreasonable' refusal." Id.

If the court was asking us to determine whether or not the above 12-day period constitutes an unreasonable refusal to bargain or an unreasonable delay in negotiations, we find that it is not an unreasonable period by IBU to delay its obligation to bargain collectively with the State. As we stated above, we do not know if a vote was taken. The way events have unfolded in this case, it is somewhat speculative for us to try to determine what would have been a reasonable period to conduct the vote.

However, we do know that on June 15, 1995, three days after the initial hearing in this matter, we issued Decision and Order No. 189 and found IBU had committed an unfair labor practice. We further concluded that a strike vote was premature. IBU timely appealed our decision on July 13, 1995. A short time later (on July 16, 1995), Bob Provost from IBU discussed possible negotiation dates with the state's representative, Mila Doyle, on July 16, 1995. This discussion indicates IBU was willing to end the delay in negotiations at that time. Even if we calculate the entire period from May 30, 1995 (the date IBU announced it would not bargain until after a strike vote) until the discussion date of July 16, 1995, we do not find this period unreasonable in this case. Moreover, the court ordered us to disregard a "reasonable delay" period to conduct a strike vote. IBU business agent Provost wrote Commissioner Boyer on May 30, 1995, expressing IBU's intent to conduct the vote. We believe a 30-day period to conduct a strike vote would have been reasonable in this case. Thus, the strike vote period would end on approximately June 29, 1995. The period between June 29 and July 16, 1995 (when the parties discussed negotiation dates) is just a little over two weeks. We do not find this period of delay unreasonable, given the circumstances. IBU should have a period of time to analyze the membership's vote, and consider its options for the next round of negotiations.

III. The State's mootness argument.

The State initially argued the case was moot. It later objected to IBU's request to dismiss the matter based on mootness. Although the IBU eventually withdrew its motion to dismiss for mootness, and despite the fact the issue was not listed as one for decision here, the State resurrected the mootness issue in its prehearing brief. The State asserts: "The State must have an opportunity to adduce the facts supporting its claim of mootness." (State's Prehearing brief at 2). It stated that under the supreme court's ruling, this agency could "decide the issue of mootness based on the circumstances actually existing at this time." (Id. at 2) (emphasis added). As IBU points out, this is an incorrect quote; the supreme court stated that "the Alaska Labor Relations Agency will be free to decide the issue of mootness based on the circumstances actually existing at that time." (Alaska Supreme Court's Order in Supreme Court No. S-08088, June 5, 1997).

IBU also presented arguments in its reply brief. Nonetheless, we have already addressed and decided the remand issue on the unfair labor practice violation. Therefore, it is unnecessary to decide the mootness issue.

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. 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.

3. 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. . . .

4. 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.

5. If the legislature disapproves the monetary terms, AS 23.40.215(b) permits the parties to return to the bargaining table.

6. The Alaska Superior Court has held that AS 23.40.200(d) does not require impasse before a strike vote may be conducted. Inlandboatmen's Union of the Pacific v. State of Alaska, 3 AN-95-5882 CI (February 14, 1997).

7. The Inlandboatmen's Union of the Pacific did not unreasonably delay in collective bargaining negotiations.

8. Considering AS 23.40.250(1) and also the right to a pre-impasse strike vote, the Inlandboatmen's Union of the Pacific's refusal to bargain collectively was not unreasonable.

9. Under the facts in the record, the Inlandboatmen's Union of the Pacific's refusal to bargain collectively was not unreasonable and does not violate AS 23.40.110(c)(2).

ORDER

1. The State of Alaska's unfair labor practice complaint against the Inlandboatmen's Union of the Pacific is denied and 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

Alfred L. Tamagni, Sr., Chair

Robert A. Doyle, 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 9th day of April, 1999.

Donna Bodkin
Administrative Clerk III

This is to certify that on the 9th day of April, 1999, a true and correct copy of the foregoing was mailed, postage prepaid to

Bob Provost, IBU, Alaska Region

Don Clocksin,attorney

Kent Durand, State of Alaska

Signature

¹ "AMHS" is the acronym for the Alaska Marine Highway System.

² The listed issues were agreed to at the September 3, 1998 prehearing conference. See prehearing conference summary dated October 7, 1998.

³ Hearing exhibits are those already submitted into the record for the June 12, 1995 hearing, and other noted correspondence. For continuity purposes, we will use the same labels given the exhibits at that hearing.

⁴ State of Alaska v. Alaska State Employees Ass'n, AFSCME Local 52, AFL/CIO, Decision and Order No. 178 (June 15, 1994).

⁵ The contract period was July 1, 1993 to June 30, 1996. The contract provided that either party could request to negotiate after January 1 of the final year of the contract. AS 23.40.210(a) provides that the term of bargaining agreements may not exceed three years.

⁶ In its prehearing brief submitted for the June 1995 hearing, IBU alleged it mailed strike vote ballots to members on June 1, 1995, and the ballots were expected to be counted on June 23, 1995. However, there was no evidence submitted to support this assertion. (See IBU June 5, 1995 prehearing brief at 3).

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