CASE NO. 96-564-RC

ALASKA LABOR RELATIONS AGENCY
3301 EAGLE STREET, SUITE 208
P.O. BOX 107026
ANCHORAGE, ALASKA 99510-7026
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Fax (907) 269-4898

CASE NO. 96-564-RC

DECISION AND ORDER NO. 213

Digest: Because the record does not include the facts needed to determine the appropriateness of the proposed unit of mental health clinicians, the Kodiak Island Borough’s motion for summary judgment and for dismissal is denied.

DECISION

Statement of the Case

On May 21, 1996, the International Brotherhood of Electrical Workers Local Union 1547, AFL-CIO, filed a petition to represent the mental health clinicians employed by the Kodiak Island Borough. A notice of the petition was posted at work sites of the affected employees on June 18, 1996. On July 2, 1996, the Borough objected to the petition on the basis that the unit was inappropriate and in conflict with earlier decisions addressing bargaining at the Borough. At the prehearing conference on July 31, 1996, the parties agreed that the issues were largely legal and that few, if any, facts were disputed. Pursuant to a schedule established at the prehearing conference, the Kodiak Island Borough filed a motion for summary judgment and for dismissal of the petition on August 15, 1996. Briefing on the motion concluded on September 4, 1996.

Panel: Blair E. Schad, James W. Elliott, and Karen J. Mahurin, participating on the basis of a review of the record.

Appearances: William F. Morse, Associate General Counsel, for complainant International Brotherhood of Electrical Workers Local Union 1547, AFL-CIO; and Robert M. Johnson, Wohlforth, Argetsinger, Johnson & Brecht, P.C., for respondent Kodiak Island Borough.

Procedure: Procedure is governed by 8 AAC 97.350.

Issues

1. Is a unit composed only of mental health clinicians an appropriate unit under AS 23.40.090?

2. Does the doctrine of res judicata prohibit a unit of mental health clinicians?

3. Does an election on July 1, 1996, under AS 23.40.100(c) bar an election among the mental health clinicians?

Summary of the Evidence

The record in this case consists of the Agency case file. 8 AAC 97.410.

Uncontested Facts

This case presents once again the question of the appropriate bargaining unit for the mental health clinicians employed by the Kodiak Island Borough. The question first arose in 1989 when the International Brotherhood of Electrical Workers Local Union 1547, AFL-CIO, (IBEW) sought to represent a unit of Borough employees. The IBEW had excluded from its proposed unit all employees working at the Borough’s mental health center. The Borough objected to the composition of the unit on the basis of unnecessary fragmentation and sought to add to the unit the mental health center employees, including the clinicians. The mental health center employees after hearing were added to the bargaining unit. International Bhd. of Elec. Workers, Local Union 1547 v. Kodiak Island Borough, DOLLRA No. 90-5 (May 4, 1990).

The Department of Labor, Labor Relations Agency,¹ conducted the election and certified the Electrical Workers as the bargaining representative of the general unit of Borough employees it had defined. Bargaining, however, was delayed until mid-1993.² An immediate issue in bargaining was the composition of the bargaining unit. The Borough sought clarification of the bargaining unit on August 2, 1993, "to correct errors in the initial unit determination and to address new positions that had been created." Kodiak Island Borough v. International Bhd. of Elec. Workers, Local Union 1547, case no. 94-241-UC (filed Aug. 2, 1993). The Agency dismissed the petition under 8 AAC 97.060(e). The parties then negotiated the mental health clinicians out of the unit. The excluded positions, as tentatively agreed on March 25, 1994, follow:

Excluded from the unit are elected officials, the Borough attorney, Borough Clerk, Deputy Clerk, Records Coordinator, Engineering & Facilities Director, Environmental Engineer, Construction Inspector/Arch., Construction Inspector/Eng., Community Development Director, Personnel Assistant, Administrative Assistant to the Mayor, Assessor, Finance Director, Data Processing Manager, Mental Health Center (MHC) Director, MHC Assistant Director, MHC Clinicians, MHC Staff Assistant, MHC Rehabilitation Director and Fire Chief.

Millard v. International Bhd. of Elec. Workers, Local Union 1547, Decision & Order No. 183, at 5 (Dec. 21, 1994) (emphasis added).

The parties did not finalize the agreement before two decertification petitions were filed. The first, which was filed on April 5, 1994, was to decertify the entire unit; the second petition, filed on July 18, 1994, was to sever and decertify only the employees at the mental health center. This Agency found that severing the mental health center employees was not appropriate and determined that the appropriate unit was the unit found appropriate by the DOLLRA in its 1990 opinion. Id., at 18.

Because unfair labor practice charges blocked the election, the Agency did not conduct the election until July 1, 1996. International Bhd. of Elec. Workers, Local Union 1547 v. Kodiak Island Borough, Decision & Order No. 190, at 40 (July 21, 1995). The Agency issued ballots to all persons in positions in the unit DOLLRA had found appropriate. However, the only ballots that were counted were the ballots of the employees in the bargaining unit as set out in the collective bargaining agreement. The clinicians were among the voters whose ballots were challenged and excluded from participation. Certificate of Election (Aug. 12, 1996).

Now the IBEW seeks to represent the mental health clinicians. The Borough has made objections to a unit consisting solely of mental health clinicians and to an election so soon after the decertification election held this July.

Discussion

1. Is a unit composed only of mental health clinicians an appropriate unit under AS 23.40.090?

The Agency determines the unit appropriate for collective bargaining by applying the factors listed in AS 23.40.090, which states:

The labor relations agency shall decide in each case, in order to assure to employees the fullest freedom in exercising the rights guaranteed by AS 23.40.070 -- 23.40.260, the unit appropriate for the purposes of collective bargaining, based on such factors as community of interest, wages, hours, and other working conditions of the employees involved, the history of collective bargaining, and the desires of the employees. Bargaining units shall be as large as is reasonable, and unnecessary fragmenting shall be avoided.

The Borough argues that a unit consisting only of mental health clinicians promotes unnecessary fragmenting. The Borough may be correct. Certainly previous decisions suggest that this unit is too small. However, the question of the appropriateness of a unit is a factual determination, requiring the application of the factors in AS 23.40.090 to the workplace. These facts are not before us, and we therefore cannot determine the appropriateness of a mental health clinicians unit.

In the past this Agency and its predecessor the Department of Labor, Labor Relations Agency, (DOLLRA) determined that excluding the mental health center employees from the bargaining unit would cause unnecessary fragmentation and added them to the unit. In making its determination, the DOLLRA considered such factors as the organization of the Borough, the employees’ pay, classification, and benefit plans, employee transfer between departments, and interaction between the employees. International Bhd. of Elec. Workers, Local Union 1547 v. Kodiak Island Borough, DOLLRA No. 90-5, at 16-18. This Agency upheld this decision in Millard v. International Bhd. of Elec. Workers, Local Union 1547, Decision & Order No. 183, at 18. We found the organizational structure of the Borough a strong argument in support of the larger unit because severing the health center administrative and clerical employees would have promoted excessive fragmenting. Id.

These considerations do not necessarily apply to the proposed unit of mental health clinicians. For example, it is not obvious that the Borough needs the same flexibility for clinicians that it requires for its clerical and administrative employees. Nothing in the record suggests that the Borough employs clinicians outside of the Mental Health Center or even that clinicians are on a career ladder with employees in other departments. The Borough’s agreement to exclude these workers from the unit suggests that this flexibility is not required and that a separate unit of mental health clinicians would not promote excessive fragmentation.

However, because the record is insufficient to allow a determination on the appropriateness of a bargaining unit consisting solely of mental health clinicians, summary judgment is inappropriate on the Borough’s objection to the appropriateness of the unit.

2. Does the doctrine of res judicata prohibit a unit of mental health clinicians?

The doctrine of res judicata does apply to the decisions of this Agency. Public Employees Local 71, AFL-CIO v. City of Haines, Decision & Order No. 184, at 12 (Feb. 14, 1995); Usibelli Coal Mine, Inc. v. State of Alaska, 921 P.2d 1134, 1996 WL 465776, at 3-4 (Alaska 1996). This Agency has addressed the unit placement of the mental health clinicians in a number of cases, as set out previously. In none of these cases, however, has the Agency considered the appropriateness of a unit consisting exclusively of clinicians. The clinicians were always part of a larger group of mental health center employees. Because the issue presented in this case has not been considered in an earlier case, the doctrine of res judicata does not prohibit our consideration of the issue in this case. The Agency reached a similar conclusion in Public Safety Employees Ass’n (F.W.E.O.) v. State of Alaska, Decision & Order No. 186, at 15 (May 25, 1995). In the F.W.E.O.s case, the Agency considered whether the principle of res judicata bound the parties to an earlier decision affecting FWEOs. In that case, the parties in the two cases were the same, the issue of the composition of the unit was finally resolved, and its resolution was essential to the final judgment in the first case -- factors indicating that res judicata should bar consideration of the issue. However, the Agency concluded that the doctrine of res judicata did not prevent its consideration of the appropriateness of the unit. The reason was that the unit under consideration was defined differently; the unit in the first case included positions that were not included in the unit in the second case. Because the unit in this case is defined differently than it was in International Bhd. of Elec. Workers, Local Union 1547 v. Kodiak Island Borough, DOLLRA No. 90-5, and Millard v. International Bhd. of Elec. Workers, Local Union 1547, Decision & Order No. 183, those cases should not bar consideration of the issue of the proposed unit of mental health clinicians in this case.

3. Does the election on July 1, 1996, bar an election among the mental health clinicians under AS 23.40.100(c)?

The Borough maintains that, because the clinicians participated in the decertification election on July 1, 1996, the election bar prohibits their participation in another election for a period of twelve months. AS 23.40.100(c) provides "an election may not be held in a bargaining unit or in a subdivision of a bargaining unit if a valid election has been held within the preceding 12 months."

In one sense the mental health clinicians were "a subdivision of a bargaining unit" in which this Agency conducted an election "within the preceding 12 months." The clinicians were mailed ballots for the July 1, 1996, decertification election. The election certificate issued after the election, however, certified the mental health clinicians as excluded from the unit. Election Certificate (Aug. 12, 1996). While the Agency had issued all persons ballots in positions in the unit as it was initially certified by this Agency, it upheld challenges to counting the ballots of any employees that the IBEW and the Borough had negotiated out of the unit. Only the ballots of the employees covered by the IBEW and Borough collective bargaining agreement were actually counted in the election. Although the clinicians were issued a ballot, they did not participate in the election.

Under similar circumstances the National Labor Relations Board has concluded that its election bar does not apply. 29 U.S.C. § 159(c)(3) is nearly identical to the election bar in AS 23.40.100(c). In cases decided under 29 U.S.C. § 159(c)(3) the NLRB has found that the election bar does not bar an election among employees who were excluded from the unit in a prior election. S.S. Joachim & Anne Residence, 314 N.L.R.B. No. 194, 147 L.R.R.M.(BNA) 1091 (1994); Philadelphia Co., 84 N.L.R.B. No. 19, 24 L.R.R.M.(BNA) 1251 (1949)(a group that was not included in the initial election could petition later to be added to the unit).

We conclude that the election bar in AS 23.40.100(c) does not prohibit an election among the mental health clinicians.

Conclusions of Law

1. Kodiak Island Borough is a public employer under AS 23.40.250(7) and subject to the Public Employment Relations Act, Kodiak Island Borough v. State of Alaska, 853 P.2d 1111 (Alaska 1993). The Alaska Labor Relations Agency has jurisdiction under AS 23.40.100 to consider this case.

2. Because the facts in this record are insufficient to allow a determination of the appropriateness of a unit of mental health clinicians, the Agency denies the motion for summary judgment on that issue.

3. Because the facts are undisputed on the issues raised concerning res judicata and the election bar under AS 23.40.100(c), we grant summary judgment on those issues.

4. Res judicata does not bar consideration of the appropriateness of a unit of mental health clinicians, and the motion to dismiss is denied on that basis.

5. The election bar in AS 23.40.100(c) does not bar an election among the mental health clinicians, and the motion to dismiss is denied on that basis.

ORDER

1. The motion to dismiss filed by the Kodiak Island Borough is denied;

2. The objection of the Kodiak Island Borough to the composition of the proposed bargaining unit is not appropriate for summary disposition and should be set for hearing; and

3. The Kodiak Island Borough 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

Blair E. Schad, 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 the Decision and Order in the matter of INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS LOCAL UNION 1547, AFL-CIO vs. KODIAK ISLAND BOROUGH, CASE NO. 96-564-RC, dated and filed in the office of the Alaska Labor Relations Agency in Anchorage, Alaska, this 6th day of January, 1997.

Margie Yadlosky

Administrative Assistant

This is to certify that on the 8th day of January, 1997, a true and correct copy of the foregoing was mailed, postage prepaid to

Laurie Otto,General Counsel for IBEW

Robert M. Johnson, Kodiak

Signature

¹The Department of Labor, Labor Relations Agency, administered the Public Employment Relations Act for municipalities before 1990. This Agency resulted from the consolidation of the DOLLRA, the State Labor Relations Agency, which administered PERA for the State, and the Railroad Labor Relations Agency, which administered the railroad labor laws for the Alaska Railroad Corporation. Executive Order No. 77 (eff. July 1, 1990).

²The Borough contested DOLLRA’s jurisdiction and the application of the Public Employment Relations Act to the Borough. These issues were not resolved until June 4, 1993, when the Alaska Supreme Court issued its decision in Kodiak Island Borough v. State of Alaska, 853 P.2d 1111 (Alaska 1993).

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