CASE NO. 96-516-CBA

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. 96-516-CBA

DECISION AND ORDER NO. 214

Digest: Unfair labor practice violations are heard under AS 23.40.110, rather than under AS 23.40.210, which authorizes enforcement of collective bargaining agreements.

DECISION

Statement of the Case

On March 13, 1996, the State of Alaska filed this petition to enforce the collective bargaining agreement against the Alaska State Employees Association, AFSCME Local 52, AFL-CIO. In its petition the State seeks an order requiring ASEA to cease and desist its demand to bargain over range assignments and classification of the new administrative class series. ASEA responded to the petition on March 26, 1996. On April 3, 1996, this matter was set for consideration on the written record. Briefing concluded on May 17, 1996, and the record closed on that date.

Panel: Board members Blair E. Schad, Robert A. Doyle, and Karen J. Mahurin.

Appearances: Art Chance, labor relations analyst, for petitioner State of Alaska; Stan Hafferman, business agent, for respondent Alaska State Employees Association, AFSCME Local 52, AFL-CIO.

Issues

1. Does the authority of the Agency to enforce collective bargaining agreements include the authority to determine whether the State has the duty to bargain the assignment of a wage range to a particular position classification?

2. Is the dispute in this case appropriate for referral to the parties’ contractual grievance procedures?

3. Does the State have the duty to bargain the assignment of a particular position classification to a wage range?

Summary of the Evidence

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

Uncontested Facts

On February 9, 1996, the Alaska State Employees Association, AFSCME Local 52, AFL-CIO (ASEA), demanded to bargain wages, hours, and terms and conditions of employment for a new employee class series -- the administrative class series. Commissioner Mark Boyer of the Department of Administration on February 16, 1996, responded that the State had no obligation to bargain further but would meet and confer with the union’s representatives. ASEA Business Manager Charles O’Connell then sought confirmation that the State had refused to bargain wages. On March 13, 1996, the State filed this petition.

Discussion

1. Does the authority of the Agency to enforce collective bargaining agreements include the authority to determine whether the State has the duty to bargain the assignment a wage range to a particular position classification?

This petition was filed under AS 23.40.210. That section authorizes this Agency to enforce collective bargaining agreements. However, the dispute in this petition can more accurately be characterized as an unfair labor practice dispute than as a contract dispute: the State in this petition is seeking a determination that its refusal to bargain the wage range assigned to certain employees does not violate its duty to bargain in good faith in AS 23.40.110(a)(5).

The procedure for raising an unfair labor practice charge appears in AS 23.40.120. That section provides for a "person claiming to be aggrieved by a practice prohibited under AS 23.40.110" to file a complaint of the unfair labor practice charge. The Agency investigates the charge. If probable cause is found to support the complaint, the Agency works with the parties to resolve the complaint informally. If informal settlement efforts fail, the Agency issues a notice of accusation, and the charge proceeds to hearing under the Administrative Procedure Act, AS 44.62.330-.660. AS 23.40.130.

The subject of this petition raises an unfair labor practice. From the pleadings it appears that the State is seeking assurance from the Agency that its refusal to bargain a wage assignment after a demand was legal. An employer’s refusal to bargain a mandatory subject of bargaining can be an unfair labor practice in violation of AS 23.40.110(a)(5). See University of Alaska Classified Employees Association, APEA/AFT, AFL-CIO v. University of Alaska, Decision & Order No. 185, at 12 (April 13, 1995), appeal pending Supreme Court No. 7801 (filed July 19, 1996). When an employer refuses to bargain, the "person aggrieved" is the bargaining representative and the bargaining representative could file an unfair labor practice charge under AS 23.40.120 and 23.40.130. In this case, ASEA, as the aggrieved following the State’s refusal to bargain, could file a charge and thereby initiate an Agency investigation. If there were merit to the charge, the investigative phase would be followed by an effort to resolve the case informally.

Instead, the State has filed this petition under AS 23.40.210(a). AS 23.40.210(a) authorizes a party to a collective bargaining agreement to enforce it by petitioning this Agency. The initial question, therefore, is whether the procedure to enforce the collective bargaining agreement in AS 23.40.210(a) can substitute for the procedure in AS 23.40.120 for unfair labor practice disputes. We believe the answer must be no.

AS 23.40.210(a) states, "Either party to the agreement has a right of action to enforce the agreement by petition to the labor relations agency." The Agency has interpreted this section as an administrative alternative to filing a complaint to enforce the agreement in court. Compare Trustees for Alaska Hotel & Restaurant Employees, Health & Welfare Fund & Pension Fund v. Hansen, 688 P.2d 587 (1984) (regarding enforcing agreement under federal Labor Management Relations Act), with Fairbanks Fire Fighters Ass'n v. City of Fairbanks, Decision & Order No. 142 (Aug. 7, 1992). In the past litigants have used this section to petition the Agency to enforce the grievance arbitration term in the agreement. See e.g., Alaska Public Employees Association v. Alaska State Housing Authority, Decision & Order No. 133 (June 19, 1991). If the

petitioner prevails, the Agency will usually compel the parties to arbitration. The Agency returns the parties to their contractual process, rather than decide the actual contract dispute; the Agency does not substitute itself for the arbitrator. Fairbanks Fire Fighters Ass'n v. City of Fairbanks, Decision & Order No. 142. The issues the Agency addresses in contract enforcement proceedings tend to be simpler than unfair labor practice issues because the focus tends to be on such questions as arbitrability rather than the parties’ underlying dispute. In addition, the procedures are simpler than the unfair labor practice procedures. Efforts at conciliation and settlement are not required. The less formal hearing procedure in 8 AAC 97.350 applies, rather than the APA procedures applying to unfair labor practice charges. AS 23.40.130. The APA, for example, requires an attorney hearing officer and allows formal discovery. See generally AS 42.62.330--44.62.660. Since the procedures and issues tend to be simpler, AS 23.40.210(a) can be a reasonably efficient means of getting a contract dispute to an arbitrator, if appropriate.

On the other hand the unfair labor practice procedures are tailored for the unfair labor practice dispute. An unfair labor practice represents a significant breakdown in the collective bargaining relationship. It transcends a contract dispute or an employee grievance issue. The parties have opportunities to address this breakdown in the investigation and conciliation phases incorporated into the formal procedures. However, these important phases are bypassed when the unfair labor practice is filed as a petition to enforce the agreement under AS 23.40.210(a).

The State’s rationale for filing its dispute as a contract enforcement petition rather than wait to be a respondent in an unfair labor charge is that contract enforcement proceedings are less contentious and less damaging to a relationship than the competing allegations in an unfair labor practice charge. This reasoning, however, overlooks the role the investigation and conciliation phases can play in resolving an unfair labor practice dispute before it reaches an adversarial administrative hearing. This goal is consistent with the aims of the Public Employment Relations Act in AS 23.40.070 and plainly stated in AS 23.40.120, which provides, in part:

If [the Agency] determines after the preliminary investigation that probable cause exists in support of the complaint or accusation, it shall try to eliminate the prohibited practice by informal methods of conference, conciliation, and persuasion.

Moreover, if a dispute proceeds to hearing, the process is adversarial--whether the proceedings are under AS 23.40.210(a) or AS 23.40.110.

Nevertheless, the State argues that the dispute is a contract enforcement issue. To show the existence of a contract issue, the State relies upon articles 4 and 17 of the ASEA/State agreement. Article 4 reserves to management the right to "Develop and modify class specifications as well as the assignment of the salary range for each classification and allocate positions to those classifications." This section appears to give the State the discretion to assign a salary range to a position class. In article 17, however, the parties negotiated a limited role for ASEA in job classification and wage range assignment. Article 17 allows ASEA to request review of the classification of a position or of the class or even the class series. The procedure is independent of the grievance arbitration clause. ASEA, however, has not attempted to invoke these proceedings. We can infer from the State’s argument that it believes that ASEA’s demand to bargain exceeded the role negotiated for ASEA in the agreement, but the State has not charged the ASEA in this case with a breach of the agreement or attempted to enforce article 17, which would at least raise a contract dispute. The State seeks from the Agency only two statements: that the union has no enforceable rights under the agreement "concerning assignment of classification to salary ranges;" and that the State has no duty to bargain "as a matter of contract law." Bargaining, however, is an unfair labor practice issue and bargaining rights are determined under AS 23.40.110. The State appears to be seeking an advisory opinion that its conduct did not violate the duty to bargain in AS 23.40.110. It cannot disguise that fact by anticipating the complaint that ASEA would file under AS 23.40.110(a)(5) if it were aggrieved by the State’s refusal to bargain.

Because the dispute is an unfair labor practice dispute, we will not address it under the procedure for enforcement of a collective bargaining agreement in AS 23.40.210(a).¹

2. Is the dispute in this case appropriate for referral to the parties contractual grievance procedures?

The State argues that this case is not appropriate for arbitration. ASEA argues that the dispute is not subject to the grievance procedure and remedial action by the Agency under AS 23.40.110 would be appropriate.

We agree that this dispute should not be referred to arbitration. The grievance procedure culminating in arbitration is for contract and employee discipline disputes. Construction or interpretation of the agreement is not the core of the parties’ dispute in this case. This dispute is an unfair labor practice dispute, which if properly filed under AS 23.40.120, would be appropriately addressed by the Agency rather than by an arbitrator.

3. Does the State have the duty to bargain the assignment of a particular position classification to a wage range?

The core of the State’s petition is its claim that it has no duty to bargain wage assignment. The State argues that wage assignment is an employee classification issue, which is not a mandatory subject of bargaining. The State in the collective bargaining agreement has agreed to a limited role for ASEA in employee classification; this role is the outer limit of the State’s obligation to ASEA on this issue. Whether the State is correct will depend upon the application of the Supreme Court’s decision in Alaska Public Employees Ass’n v. State, 831 P.2d 1245 (Alaska 1992). The Court in that case held that the state classification plan and the assignment of salary ranges to positions were not mandatory subjects of bargaining. If the subject is not a mandatory subject, the State would not be required to bargain over it. Moreover, if the bargaining representative insisted to impasse on a nonmandatory subject, it would commit the unfair labor practice. See Yukon Flats School District v. State of Alaska, Labor Relations Agency, 3AN-92-3603 (Feb. 5, 1993) (reversing Decision & Order No. 136). Whether the ASEA’s demand to bargain was a demand to bargain a nonmandatory subject is an issue that would be appropriate for examination in a charge under AS 23.40.110(a)(5). We will not address it in this case.

Conclusions of law

1. The State is a public employer under AS 23.40.250(7). The ASEA is an employee organization under AS 23.40.250(5). This Agency has jurisdiction under AS 23.40.210(a) to consider petitions to enforce a collective bargaining agreement.

2. The issues raised in this case are issues appropriate for consideration under AS 23.40.110, which authorizes this Agency to address unfair labor practice charges.

3. This case does not raise bargaining agreement enforcement issues under AS 23.40.210(a).

4. Because the State has not raised a question of contract enforcement under AS 23.40.210(a) in its petition, the petition should be denied.

ORDER

1. The petition of the State of Alaska to enforce the collective bargaining agreement is denied and dismissed; and

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

Blair E. Schad, Vice 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. ALASKA STATE EMPLOYEES ASSOCIATION, AFSCME LOCAL 52, AFL-CIO, CASE NO. 96-516-CBA, dated and filed in the office of the Alaska Labor Relations Agency in Anchorage, Alaska, this 4th day of March, 1997.

Victoria D. Scates

Administrative Clerk III

This is to certify that on the 4th day of March, 1997, a true and correct copy of the foregoing was mailed, postage prepaid to

Kent Durand, State

Stan Hafferman, ASEA

Signature

¹By declining to review the issues on procedural grounds, we do not address the merits of the issues. This decision should not be interpreted as a rejection of the State’s claim that it was not obligated to bargain under the facts of the case or as a statement that ASEA did anything inappropriate by requesting to bargain. See discussion under section 3, infra.

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