CASE NO. 96-497-RD

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. 96-497-RD

DECISION AND ORDER NO. 216

Digest: A unit of Alaska Marine Highway System unlicensed engine department employees is not an appropriate bargaining unit under AS 23.40.090 because its creation would cause unnecessary fragmentation of the work force, among other reasons.

DECISION

Statement of the Case

RPM on January 12, 1996, filed this petition to represent a group of engine room workers employed by the Alaska Marine Highway System in a bargaining unit represented by the Inlandboatmen’s Union of the Pacific. RPM was notified by letter dated January 18, 1996, that its petition was insufficient because the showing of interest did not show support for RPM, among other deficiencies. RPM sought and was granted an extension of time to supplement its showing of interest, and RPM supplemented its showing on February 6, 1996. On February 26, 1996, Agency staff reminded RPM that the Agency had not received copies of its constitution, by-laws, and roster of officers and stated that the Agency would not proceed beyond posting of the petition without these documents. Agency staff clarified the description of the unit with RPM and State representatives and, on March 22, 1996, the Agency advised that RPM had satisfied the showing of interest requirement. Between April 3 and 25, 1996, the State posted copies of the petition in work places where affected employees work. On April 5, 1996, IBU objected to the petition and moved to dismiss it. On April 8, 1996, Agency staff provided RPM with a final deadline of April 15, 1996, for the filing of its constitution, by-laws, and roster of officers. On April 15, 1996, RPM filed copies of its constitution and by-laws and a list of officers; RPM advised that an election was in progress and a new list of officers was expected in two weeks. RPM has not supplemented this list. Hearing examiner Jan Hart DeYoung denied the motion to dismiss on April 17, 1996.

The petition was heard on June 26, 27, and 28, 1996, in Juneau, Alaska. The record closed on July 9, 1996, upon receipt of posthearing memoranda. On September 24, 1996, the parties were advised that board member James W. Elliott had removed himself from participation in the decision and that Robert A. Doyle had been assigned to replace him.

Panel: Chair Alfred L. Tamagni, Sr., and board members Robert A. Doyle and Raymond P. Smith, participating after review of the record.

Appearances: Daniel C. Wayne, attorney, for petitioner RPM; Art Chance, labor relations specialist, for respondent State of Alaska, Alaska Marine Highway System; and Randall G. Simpson, Jermain, Dunnagan & Owens, for intervenor Inlandboatmen’s Union of the Pacific, Alaska Region, Marine Division -- ILWU.

Procedure in this case is governed by 8 AAC 97.330 -- 8 AAC 97.480. Hearing examiner Jan Hart DeYoung presided.

Issues

1. Does AS 23.40.240 prohibit this Agency from making any changes to the composition of a bargaining unit recognized before the effective date of PERA in 1972?

2. Did RPM timely file its petition under the requirements of 8 AAC 97.060(e)(3)?

3. Does AS 23.40.100 require the petitioner of a representation petition to be a labor organization; and if so, did RPM become a labor organization in a timely manner?

4. Is the unit RPM seeks to represent an appropriate unit under AS 23.40.090?

5. Does RPM meet the requirements for severing a bargaining unit from an existing bargaining unit under 8 AAC 97.025(b)?

Summary of the Evidence

A. Exhibits.

RPM offered the following exhibits, which were admitted into the record:

1. State of Alaska, employee roster (Mar. 1, 1996); and

2. K. Mitchell, memorandum to B. Cummings (Mar. 14, 1996).

RPM offered at the conclusion of the taking of testimony the following exhibits, which were not admitted into the record because the offer was untimely:

3. Essential functions-demands job analysis for oiler position; and

4. Essential functions-demands job analysis for junior engineer position.

State of Alaska, Alaska Marine Highway System offered the following exhibits, which were admitted into the record:

A. Class specification, junior engineer (June 12, 1978);

B. Class specification, oiler (June 12, 1978);

C. Class specification, wiper (June 12, 1978);

D. MEBA/State Agreement (Nov. 1, 1993); and

E. [withdrawn]

F. MM&P/State Agreement (April 1, 1994).

Inlandboatmen’s Union of the Pacific, Alaska Region, Marine Division -- ILWU offered the following exhibits, which were admitted into the record:

101. IBUP By-Laws;

102. Agreement Between Alaska and IBUP (1994-1996);

103. Agreement Between Alaska and IBUP (1990-1993);

104. Agreement Between Alaska and IBUP (1988-1991);

105. Agreement Between Alaska and IBUP (1985-1988);

106. Agreement Between Alaska and IBUP (1980-1983);

107. Agreement Between Alaska and IBUP (1977-l979);

108. Agreement Between Alaska and IBUP (l975-l977);

109. Agreement Between Alaska and IBUP (1973-l975);

110. Agreement Between Alaska and IBUP (1967-1970);

111. Agreement Between Alaska and IBUP (1964-1967);

112. Agreement Between Alaska and IBUP (1963-1964);

113. AMHS Relief Seniority Roster (as of 3/3 l/96) dated 5/8/96 and notes on how ability to change departments allows employees to work when their regular departments have no jobs available;

114. Seniority Roster (as of 8/31/80) printed on 10/11/90 and notes on ability to change departments allows employees to work when their regular departments have no jobs available;

115. Seniority Roster (as of 9/30/86) and notes explaining tendency of Engineering Department employees to get work in other departments;

116. Seniority Roster for Relief and Seasonal Employees (5/8/96);

117. Seniority Roster for Job: Wiper (5/8/96);

118. Seniority Roster for Job: Oiler (5/8/96);

119. Seniority Roster for Job: Junior Engineer (5/8/96);

120. Letter from Leif Jenkinson to Tom Doran (9/29/95);

121. AMHS Engineer Notice & Poll;

122. Letter of Sam Romey to Bruce Cummings (12/8/95);

123. Grievance Package for Romey ULP(6/27/95);

124. Engine Room Advisory Referendum on 26-Week Rule & Job Security (Nov. 1995);

125. C.O.L.D. Class Action Grievance Step 4 (10/26/93);

126. Travel Class Action Grievance Step 4 (9/13/93);

127. Class Action Grievance for Overtime (12/11/84);

128. Class Action Grievance for Elimination of Position (6/6/86);

129. All Crew Grievance for Non-payment of Late Arrival (8/30/85);

130. Class Action Grievance for Minimum Manning Levels (8/30/85);

131. M/V Bartlett Grievance Regarding Overtime for Crew (10/17/85);

132. Douglas Ruhl Grievance Packet (various);

133. Brian Russell Grievance Packet (various);

134. Bruce Erkenbrack Grievance Step 4 (various);

135. Bruce Erkenbrack Maintenance and Cure Award (various);

136. Carl Lervick Grievance (6/13/94);

137. Jefferson Walsh Grievance Packet (3/23/94);

138. George Cross Grievance Packet (10/25/95);

139. Excess of 84 Hours Grievance Resolution letter of Dixie Hudish (3/20/95);

140. Letter to Provost from Cummings dated 3/27/96 re: work schedules for unlicensed Engineers;

141. IBUP General Grievance (3/19/92);

142. Letter from Dixie Hudish re: Completed Excess of 84-Hour Issues (6/15/95);

143. Letter from Dixie Hudish dated 6/6/95 re: #94-090/AII affected Aurora "B" Crew PP;

144. Letter from Dixie Hudish dated 6/5/95 re: #94-114/All affected Matanuska "B" Crew PP;

145. Arbitration Opinion and Award dated 1/29/96 re: Unearned Wages and Maintenance;

146. Arbitrator's Opinion and Award re: Minimum Guarantees and Pay Dispute;

147. Arbitrator's Opinion and Award re: Overtime for Drills (3/29/96);

148. Arbitrator's Supplemental Award re: M/V Tustemena, M/V Nunaniq Dispute;

149. AMHS Seniority Roster for Job: Wiper (5/8/96) with notes explaining the ability to work in different classifications;

150. AMHS Seniority Roster for Job: Oiler (5/8/96) with notes explaining the ability to work in different classifications;

151. AMHS Seniority Roster for Job: Junior Engineer (5/8/96) with notes explaining the ability to work in different classifications;

152. Summary of Most Current Seniority Roster (as of 3/31/96);

153. AMHS Seniority Roster for Relief & Seasonal Employees (5/8/96);

154. Essential functions-demands job analysis for wiper position;

155. RPM Constitution; and

156. RPM By-laws.

B. Testimony.

Petitioner RPM presented the testimony of Denise Van Der Pol, vocational rehabilitation specialist; Greg O’Claray, director of legislative and governmental affairs for National Marine Engineers’ Beneficial Ass’n; David Barnes, unlicensed junior engineer and former Inlandboatmen’s Union executive board member; Samuel Romey, president, RPM; Arthur "Bud" Kenyon, junior engineer, executive board and negotiating team member, Inlandboatmen’s Union; Bob Provost, regional director, Inlandboatmen’s Union; and Mark Boyer, commissioner, Alaska Department of Administration.

The State of Alaska, Alaska Marine Highway System, did not present any testimony.

Intervenor Inlandboatmen’s Union of the Pacific, Alaska Region, Marine Division -- ILWU, presented the testimony of Henry Jebe, junior engineer; Leif Jenkinson, patrolman, Inlandboatmen’s Union; Mark Hutson, junior engineer; William Sherman, Inlandboatmen’s Union ship delegate; and Tom Streeper, wiper and negotiating team member, Inlandboatmen’s Union.

C. Agency case file. 8 AAC 97.410.

Findings of Fact

The panel, by a preponderance of the evidence, finds the facts as follows:

1. RPM stands for "recrudesced professional motormen." It is a nascent labor organization consisting of a loosely organized group of Alaska Marine Highway System (AMHS) unlicensed engine department employees. RPM seeks to sever certain employees from the unlicensed unit represented by the Inlandboatmen’s Union of the Pacific, Alaska Region, Marine Division -- ILWU, and to represent them in bargaining in a separate unit.

2. RPM’s membership is unclear. Tr. 303. It was described "As individuals who hold a bid job in the engine room, have designated the engine room as their preferred choice of workplace, and not someone holding a bid in another department or permanent job in another department." Tr. 339.

3. RPM has not had any meetings or collected any dues. Tr. 310, 339. It has received contributions of $8,000 to fund this representation petition and has elected a governing council. Tr. 326. Certain unlicensed engine department AMHS employees were provided mail ballots to elect a general council and elected Sam Romey as president, Mike Shott for the southwest region, and Kevin Nye for the southeast region. Tr. 307.

4. An RPM constitution, Exh. 155, and RPM by-laws, Exh. 156, were filed with the Agency on April 15, 1996, but they are drafts that have not been circulated to the members or approved. Tr. 303-304, 314.

5. The employees RPM wants to sever from the unlicensed unit were described in the notice of petition that was posted in the workplace as follows:

Included: All unlicensed regularly assigned employees, relief employees, seasonal employees, regularly assigned relief employees, displaced regularly assigned employees, and probationary employees of the Alaska Marine Highway System who have engine department points and have expressed to the employer willingness to accept assignment in the following job classifications:

Junior Engineer, Oiler, and Wiper

Excluded: All other Alaska Marine Highway System employees.

The 268 employees meeting this description are listed in the employee roster, which the State produced. Exh. 1.

6. The posted description is of a unit larger than the group RPM wants to represent; it includes, for example, employees who have accepted permanent positions outside of the engine department. Tr. 309; Exh. 1, at 3-9. The group RPM wants to sever and represent can be more accurately described as all unlicensed regularly assigned employees, relief employees, seasonal employees, regularly assigned relief employees, displaced regularly assigned employees, and probationary employees of the Alaska Marine Highway System with a minimum of four engine department points who have not accepted a permanent assignment in the deck, stewards, or purser departments, excluding all other Alaska Marine Highway System employees. Tr. 307.

7. These employees currently are represented in bargaining by the Inlandboatmen’s Union of the Pacific, Alaska Region, Marine Division -- ILWU (IBU), which has represented them in the unlicensed unit since 1963. Exh. 112.

8. The most recent State and IBU collective bargaining agreement covers the pe riod between October 10, 1994, and March 31, 1996. Exh. 102. The State and IBU have also negotiated a successor to this agreement. Tr. 637, 639.

9. The unlicensed employees in the four departments at the AMHS share a genuine and substantial community of interest.

10. The pay plan of the unlicensed employees in the engine department is the same pay plan covering the other three departments. Rates of pay are established by position. Exh. 102, at 36.

11. The unlicensed AMHS employees work similar hours. Exh. 102, at 26.

12. The unlicensed employees in the four departments at the AMHS share similar working conditions.

13. RPM did not establish that the employees described in finding of fact no. 6 desire a unit composed exclusively of unlicensed engine department employees.

14. The creation of an additional unit of unlicensed AMHS employees would cause unnecessary fragmenting; the proposed engine department is not the largest reasonable unit of these employees.

15. While RPM has raised a question about the adequacy of IBU’s representation in bargaining the wages for two of the engine department positions, we find that, on balance, IBU adequately represents the interests of the employees in RPM’s proposed unit within the existing unit structure.

16. The evidence of employee bargaining units in public ferry systems or in the maritime industry did not show any particular tradition or pattern of representation.

17. The unlicensed employees working in the engine department do not comprise a distinct or homogenous craft.

18. RPM has not demonstrated that it is minimally qualified to represent a unit of employees in collective bargaining.

Discussion

A number of AMHS engine department employees are frustrated because the most recent collective bargaining agreement between the State and IBU did not provide the wage increase sought by the oilers and the junior engineers. The oilers and junior engineers did share in the 1.4 percent salary increase and the signing bonus obtained for all of the members of the bargaining unit. They did not, however, receive the hourly increase of $.60 (for oilers) and $1.10 (for junior engineers) negotiated in an earlier agreement between IBU and the State that the legislature failed to fund. When the IBU and the State returned to the bargaining table to negotiate another agreement, the increase for the two engine room positions was lost. The IBU membership ratified the agreement and the legislature funded it. Dissatisfied with IBU’s handling of this issue, a group of engine department employees now wishes to break away from IBU’s unlicensed unit. Tr. 270, 273-274.

The group that seeks to break away calls itself the recrudesced professional motormen or RPM. This fledgling group wants to associate with another AMHS bargaining representative, the National Marine Engineers’ Beneficial Association. MEBA, however, is prohibited from associating with these employees, at least for a period of time, under the anti-raid provision in article 20 of the AFL-CIO constitution, because of their representation by another AFL-CIO affiliate. Tr. 150. RPM was formed to pursue a petition to sever the group of engine department employees and represent them in bargaining.

IBU objects to RPM’s petition. One of the issues IBU raises is whether RPM has achieved the status of a labor "organization" under the Public Employment Relations Act (PERA). Another issue, which the State raises, is whether this Agency is restricted from changing an AMHS bargaining unit because the AMHS units predate the adoption of PERA. Issues regarding the timeliness of the petition, the appropriateness of the unit, and whether RPM justifies severance under 8 AAC 97.025(b) are also addressed.

1. Does AS 23.40.240 prohibit this Agency from making any changes to the composition of a bargaining unit recognized before the effective date of PERA in 1972?

Collective bargaining between the AMHS and its employees precedes the adoption of the PERA in 1972. Before the adoption of PERA, the Inlandboatmen’s Union represented the unlicensed bargaining unit, including the unlicensed engine workers who seek in this petition to sever from the unit. PERA’s effect on bargaining units existing at its adoption is addressed in AS 23.40.240. That statute is the basis of the State’s argument that this Agency may not make any changes to the AMHS bargaining units. RPM argues, on the other hand, that this statute did not freeze forever the contractual relationships and agreements in effect before PERA, but served only to protect the relationships during the transition to collective bargaining under PERA.

AS 23.40.240 provides:

Effect on certain units, representatives, and agreements. Nothing in this chapter terminates or modifies a collective bargaining unit, recognition of exclusive bargaining representative, or collective bargaining agreement if the unit, recognition, or agreement is in effect on September 5, 1972. (§ 2 ch 113 SLA 1972)

A review of the language supports RPM’s argument. It insures that PERA does not disrupt existing bargaining relationships but does not expressly exempt these relationships from any of the rights and obligations under PERA.

The argument that the AMHS bargaining units were exempt from PERA was rejected by the Alaska Supreme Court in Hafling v. Inlandboatmen’s Union, 585 P.2d 870, 99 L.R.R.M.(BNA) 3060, 3061 (Alaska 1978). The court in that case required that PERA be read in harmony with AS 23.40.240, which consented to collective bargaining for ferry workers before 1972. The language of AS 23.40.240 does not disclose any legislative intent to freeze bargaining units or bargaining representatives forever. It does not, for example, exempt the AMHS from representation proceedings under PERA.¹ The workplace has changed since the adoption of PERA in 1972. Prohibiting proceedings or elections that might be needed to respond to those changes would be inconsistent with employees’ rights in AS 23.40.080 to determine who will represent them in bargaining or even to reject collective bargaining if that is the majority’s will.

We conclude that AS 23.40.240 does not bar consideration of RPM’s petition to sever the engine department employees from the unlicensed employees bargaining unit.

2. Did RPM timely file its petition under the requirements of 8 AAC 97.060(e)(3)?

One of the objections to RPM’s petition is RPM’s failure to meet the requirements for filing in 8 AAC 97.060(e)(3). The contract bar in PERA bars elections during the time a collective bargaining agreement is in effect except for a 90-day period preceding the expiration date of the agreement. AS 23.40.100(e). To enable the Agency to conduct an election during this 90-day period, the Agency adopted 8 AAC 97.060(e)(3), which requires that election petitions be filed between 150 and 90 days before the expiration date of the agreement.

RPM states in its petition that the IBU/State agreement expired May 31, 1996. The period for filing a representation petition was therefore between January 2, and March 4, 1996. RPM filed its petition initially on January 12, 1996, which was well within the required time period. The petition, however, was incomplete. The requirements for filing a representation petition in PERA are that the petitioner allege support by 30 percent of the employees in the unit and that the petition be "submitted in a manner prescribed by the labor relations agency." AS 23.40.100(a)(1).

The Agency’s requirements for submission of a petition to sever a group of employees from an existing unit, decertify the existing representative, and certify a new one appear in 8 AAC 97.025 and 8 AAC 97.030. 8 AAC 97.030 requires that a petition for decertification include a showing of interest of 30 percent of the employees to be severed and meet the requirements of 8 AAC 97.025(a). A petition for certification also must show interest of 30 percent of the affected workers in support of the petition. 8 AAC 97.025(c). RPM’s showing of interest required supplementation, and RPM supplemented its showing of interest by

February 6, 1996, which was within the window period.² It was also within the extended deadline of February 12, 1996, provided by the Agency.

In addition to evidence of employee support the Agency in 8 AAC 97.025(a) requires that certain basic information must be provided in a representation petition. Important here is the requirement of copies of the constitution and by-laws and the roster of officers of the labor organization. RPM did not submit its constitution and by-laws until April 15, 1996. A final list of officers was not provided. Because these materials were not filed before the window period ended on March 1, 1996, IBU argues the petition was untimely.

8 AAC 97.025 and 8 AAC 97.030 state that the agency "will consider a petition substantially fulfilling the requirements of this section."³ The question is whether the petition was substantially complete during the window period. The record shows that RPM was dilatory in filing these materials and required several reminders. It also shows, however, that the Agency acquiesced in the late filing and RPM cured the deficiency within the final deadline provided. See facts set forth in the Order on Motion to Dismiss Petition (April 17, 1996). We conclude that the petition was timely filed.

3. Does AS 23.40.100 require the petitioner of a representation petition to be a labor organization; and if so, did RPM become a labor organization in a timely manner?

AS 23.40.100 addresses the requirements for filing a representation petition. It does not limit filing to labor organizations. AS 23.40.100 provides, in part:

(a) The labor relations agency shall investigate a petition if it is submitted in a manner prescribed by the labor relations agency and is

(1) by an employee or group of employees or an organization acting in their behalf alleging that 30 percent of the employees of a proposed bargaining unit

(A) want to be represented for collective bargaining by a labor or employee organization as exclusive representative, or

(B) assert that the organization which has been certified or is currently being recognized by the public employer as bargaining representative is no longer the representative of the majority of employees in the bargaining unit; . . . .

Thus, a "group of employees" can file a representation petition. RPM should qualify as a group of employees even if it is not a labor organization. Because RPM is not required to be a labor organization to file a representation petition, we do not need to determine whether RPM was a labor organization either when it filed the petition or by the close of the window period for filing a representation petition.

While the RPM need not be a labor organization to file the petition, however, certainly it must be a labor organization to serve as a bargaining representative. The petition must state that the employees "want to be represented for collective bargaining by a labor or employee organization." AS 23.40.100(a)(1). PERA defines organization. AS 23.40.250(5) provides:

"[O]rganization" means a labor or employee organization of any kind in which employees participate and which exists for the primary purpose of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, and conditions of employment.

Because employees created RPM for the purpose of serving as a bargaining representative of the unlicensed engine department employees and they participate in RPM, RPM satisfies the very loose requirements in this definition.

4. Is the unit RPM seeks to represent an appropriate unit under AS 23.40.090?

RPM must establish that the unit it proposes, a unit of unlicensed engine department employees, would be an appropriate unit for 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. In addition, RPM must show that the unit is as large as is reasonable and that it avoids unnecessary fragmentation. AS 23.40.090.

Identifying those employees RPM seeks to represent has been difficult. RPM in its petition described the proposed unit as

RD - All unlicensed "Engine Department" employees on Alaska State ferries.

RC - All unlicensed "Engine Department" employees on Alaska State ferries.

RPM excluded, "All Alaska State Ferry workers except those whose primary job duties are within the ‘Engine Department.’" Labor Organization Representation Petition (filed Jan. 16, 1996). Because members of the bargaining unit may bid for work in positions in any of the four departments for which they may be qualified, this description was not adequate to identify those employees RPM sought to represent. By letter dated February 13, 1996, Agency staff proposed a format for RPM to describe its unit that would list the specific positions it sought to represent:

Included: All unlicensed regularly assigned employees, relief employees, seasonal employees, regularly assigned relief employees, displaced regularly assigned employees and probationary "Engine Department" employees on Alaska Marine Highway System ferries in the following job classifications:

(List classifications here- see attached list)

Excluded: All other Alaska Marine Highway System employees

RPM did not provide a description. After a telephone conference on March 14, 1996, with representatives of the parties, Agency staff confirmed revisions to the unit description." J. Ward, letter to D. Wayne and A. Chance (Mar. 14, 1996). See finding of fact no. 5. The State posted a notice of RPM’s petition containing this description.

RPM did not protest this description or respond to the March 14, 1996, letter until April 15, 1996, when RPM notified the Agency that the State’s roster contained "extra names." RPM stated, "We request either that the names which do not meet our definition be struck by the Agency, or that the employer be directed to submit a list that does not include extra names." Agency staff responded on April 16, 1996, "If you have a problem with the list, you will need to be more specific about it." RPM did not respond.

Testimony at the hearing, however, amplified RPM’s problems with the unit description. RPM president Romey said the description included employees with permanent positions in other departments and with only minimal ties to the engine department. Tr. 309. Romey did describe the group it had polled for the election of RPM officers. This group included all AMHS employees with at least 4 engine department points who had not taken a permanent position in another department. Tr. 307. We infer from this testimony that this is the unit RPM seeks to represent. See finding of fact no. 6.

Because the Agency examines the appropriateness of the unit the petitioner proposes to represent, it will examine the unit described by Romey in his testimony.

a. History of collective bargaining.

The Public Employment Relations Act was adopted in 1972. On that date the State was already bargaining with representatives of the employees of AMHS. The vessel employees are organized into three bargaining units, the licensed deck, represented by the International Organization of Masters, Mates, and Pilots Pacific Maritime Region (IOMM&P), Exh. F; the

licensed engineers, represented by the National Marine Engineers’ Beneficial Association (MEBA), Exh. D; and the unlicensed employees represented by the IBU, Exh. 102.

IBU’s unlicensed employees can be divided into four departments, deck, purser, stewards and engine. RPM prehearing statement, p. 2. The engine department employees comprise about 12 percent of the unlicensed bargaining unit, by RPM’s estimate. Tr. 282. They have been represented by IBU since 1963. Exh. 112 (IBU/State agreement 1963-1964).

This petition is the second attempt by the engine department employees to sever from the unlicensed unit. The first attempt in 1985 did not proceed much beyond the collection of pledge cards from 67 of the 69 unlicensed engine department employees supporting representation in bargaining by the MEBA, which represents the licensed engine room employees at AMHS. Tr. 146.

b. Community of interest.

The unlicensed engine department consists of the three positions of wiper, oiler, and junior engineer. Their duties are described in class specifications that were written in 1978. Exhs. A, B, and C. While the descriptions are not adequate for some purposes and are under going revision, they do set out the duties worked and the minimum qualifications. The wiper position, Exh. C, is the entry level position in the engine department. Employees can progress to oiler with a United State’s Coast Guard Seaman’s document for oiler, Exh. B, and then to junior engineer, with a United State’s Coast Guard Seaman’s document for junior engineer. Exh. A; Tr. 59-60. Employees, such as Henry Jebe, can and do progress through the three positions. Tr. 400. The similarity of the duties and the career ladder support a strong community of interest among the three positions in the engine department.

Positions in the engine department are not, however, confined to work in the engine room. The wipers and oilers appear to work primarily in the engine room but junior engineers have duties that extend beyond the engine room. Junior engineers perform general shipboard maintenance outside of the engine room. Tr. 62. Junior engineer Bud Kenyon described spending 70 percent of his work time maintaining equipment outside of the engine room. Tr. 350. This work included keeping fan rooms greased, changing filters, cleaning steering gear strainers and bow thrusters. The wiper may assist in the work outside of the engine room. Tr. 351. Kenyon also described what he referred to as hotel work that he performed -- repairing galley equipment, changing lights, and plumbing. Tr. 352.

Employees are not, however, confined to a single department. They move between the departments. For example, most unlicensed engine department workers begin work for AMHS in the stewards department. Tr. 173. The steward position does not require any special training, Tr. 68, and the wiper position is the highest paid of the entry level positions (ordinary seaman, wiper, watchman, and porter). Tr. 73. The stewards department therefore serves often as a stepping stone to the engine department. Tr. 354. Employees move frequently between the stewards, deck, and engine departments, although there may be less movement to and from the pursers department. Tr. 70. The amount of movement to and from the engine department is demonstrated by the employee roster used to check the showing of interest. It lists all AMHS employees with engine room points who have communicated to the State an interest in engine department positions. Exh. 1. 129 of the 268 employees listed with engine department points are employed in positions outside of the engine department, demonstrating movement between the engine and other departments. Id. This movement is also demonstrated by the seniority rosters for the engine department positions. Many of the employees listed on the seniority rosters show points in other departments. Exhs. 113-115; 149-153. RPM president Romey is a seasonal oiler or junior engineer and has earned deck and steward department points. Tr. 269; Exh. 113, at 4; Exh. 122. The movement among the four departments shows a strong community of interest among all of the unlicensed employees.

An advantage of having the departments in one bargaining unit is the flexibility it provides. If a department eliminates positions, an unlicensed employee who is qualified for a position in another department can bid for it. Tr. 464. Kenyon, currently a junior engineer, was able to bump into the stewards department when a lot of engine department positions were eliminated in 1986 or 1987. Tr. 353. Some employees regularly cross between departments; one example is a purser who works as a wiper. Tr. 61. There is also career progression between the departments. Mark Hutson, who is now a junior engineer, began as a cook. Tr. 574.

Some sense of community extends even beyond the unit. The unlicensed unit can be the starting place for many employees who move into the licensed deck and engineer positions in the IOMM&P and MEBA units. The unlicensed engine jobs can lead to licensed jobs if the employee pursues the license. An example is David Barnes, who works on the Columbia in the engine room as a junior engineer. This position is a permanent job in the IBU bargaining unit. Barnes also dispatches as a third assistant, a licensed position, on a temporary basis through MEBA. Tr. 233. One witness estimated that between 12 and 18 members of MEBA who dispatch to licensed engine jobs also hold or dispatch to unlicensed engine room jobs. Tr. 175. The unlicensed deck employees similarly can work into the licensed deck positions represented in bargaining by the IOMM&P if the employee obtains the license. Tr. 497.

When the Washington Marine Employees’ Commission examined the community of interest of the Washington ferry system unlicensed engine room employees (wipers and oilers), it found they shared a community of interest with both their existing unlicensed unit represented by IBU and with the licensed engineers represented by MEBA. District 1, Pacific Coast District National Marine Engineers Beneficial Ass’n v. Inlandboatmen’s Union of the Pacific, Marine Employees’ Commission case no. 3-87 (Feb. 19, 1988). RPM has provided some evidence that would support a community of interest between the unlicensed and the licensed engine room employees. E.g., Tr. 168, 170.

It is important to note the sense of community shared by all employees who have chosen to work at sea. Tr. 187. Even without career progression, there is some sense of community among all of the workers on the AMHS ferry vessels. The AMHS employees must hold at minimum a merchant mariner’s document or "Z" card. Tr. 445, 82. They share conditions resulting from working on a "floating hotels." Tr. 172. They work away from home for extended periods. The departments are quartered together. Tr. 442. These factors distinguish workers on the vessels from other State employees. Tr. 172, 186.

We conclude that the community of interest of the four departments of the unlicensed unit is genuine and substantial.

c. Wages.

The engine department employees share the same wages and benefits as the stewards, deck hands, and pursers. One of the complaints of the engine room employees is that they should receive higher compensation compared to the other departments. The agreement establishes three pay levels in each of the four departments. Tr. 443, 464. The wiper in the engine room is the highest paid entry level position at $16.32. The steward’s entry level compensation is $15.35, and the ordinary seaman in the deck department receives $16.20 at entry. Tr. 449 - 450.

d. Hours.

The engine department employees share the same hours and schedules as the stewards, pursers, and deck hands. The engine room employees work one week on and one week off. Tr. 372. This schedule distinguishes the unlicensed employees from the licensed engineers who work two weeks on and two weeks off. Tr. 63. The unlicensed engine room employees have sought to work the same schedule as the licensed engineers, of two weeks on and two weeks off, but management has resisted this change. Exh. 2.

e. Working conditions.

Conditions in the engine department are physically challenging. It can be hot; one witness testified that the temperature of the engine room was 110 degrees. Tr. 238. It is also noisy; engine room employees must wear ear protection. Tr. 238. Employees face hazards from moving and hot equipment parts and from chemicals and fuel. Tr. 57. Stewards, deck hands, and pursers do not go into the engine room and would not be exposed to these conditions. Tr. 71. The hazards faced on deck are different and include exposure to weather, slipping and tripping hazards, and hazards from handling the lines. Tr. 78.

However, because unlicensed employees commonly work in more than one department, exposure to these conditions extends to all unlicensed employees who have accrued engine room points. Exh. 1. Conditions in the engine room, moreover, are not unique to unlicensed employees. They are also shared by licensed engineers. In addition, some unlicensed engine department employees, junior engineers, work a significant amount of time outside of the engine room. Tr. 350-352. While working conditions in the engine room do differ from conditions elsewhere on the vessel, the movement of employees among the positions in the various departments does expose other members of the unlicensed unit to these conditions.

f. Desires of employees.

Few engine department employees expressed a desire to be in a bargaining unit separate from the other unlicensed employees. Certainly RPM president Sam Romey strongly supports the change to an engine room unit. David Barnes expressed support for joining the licensed engineer unit represented by MEBA. He believes the MEBA would be more sympathetic to his concerns. Tr. 260. However, he did not express support for the unit actually proposed in this case. On the other hand, junior engineer Mark Hutson does not support the RPM effort. Tr. 606. A fourth employee, Henry Jebe, is concerned that a change of units could affect vacation and retirement benefits; he sees pros and cons to both units. Tr. 411. The evidence of the employees’ desires does not support a unit composed solely of unlicensed engine room employees.

g. Unnecessary fragmentation.

Fragmentation is a genuine concern in this case. RPM is proposing an additional bargaining unit at the AMHS. Under the current bargaining unit structure, there are three units of vessel employees. In addition to IBU and its unlicensed unit, there is MEBA and the licensed engine unit and the IOMM & P and its licensed deck unit. Respondent’s Prehearing Memorandum, p. 1. Adding another bargaining unit of engine department workers could interfere with the ability of the unlicensed employees to move between departments. Under the existing structure, certain unlicensed IBU unit members can be dispatched as wipers, oilers, ordinary seamen or stewards, for example. Severing the engine department employees could interfere with this flexibility and with the existing career ladders. It would also interfere with job security.

RPM responds to the fragmentation issue by indicating it would seek affiliation with MEBA, which represents the licensed engineers. Petitioner’s Post-Hearing Brief, p. 3. Certainly shifting employees to an established bargaining unit would avoid the fragmentation issue. Public Safety Employees Ass’n (Aircraft rescue and fire fighting specialists) v. State, Decision & Order No. 187, at 13 (May 25, 1995). MEBA, however, can provide no assurance that the RPM could merge with MEBA at some future date. Tr. 205. The question of moving the unlicensed engine department employees to MEBA’s unit is not the issue raised in RPM’s petition. RPM proposes a separate unit composed of the unlicensed engine department employees and the appropriateness of an unlicensed engine department unit is the issue before the Agency.

RPM’s reliance on MEBA and its hope of future consolidation or merger, however, lends support to the conclusion that a unit composed solely of engine room workers is not the largest unit that reasonably could represent the interests of these employees. This group of employees may share some community of interest with either the unlicensed unit or the licensed engineers unit and either unit may be an appropriate unit for them. This was the decision reached by the Washington State Marine Employees’ Commission. District 1, Pacific Coast District National Marine Engineers Beneficial Ass’n v. Inlandboatmen’s Union of the Pacific, Marine Employees’ Commission case no. 3-87. Separating the unlicensed engine room

employees from the one unit and creating a new unit, however, would result in fragmenting of the workforce.

The requirement to avoid unnecessary fragmenting in AS 23.40.090 makes the proposed unlicensed engine department unit an inappropriate unit.

5. Does RPM meet the requirements for severing a bargaining unit from an existing bargaining unit under 8 AAC 97.025(b), taking into account the analysis set forth in Mallinckrodt Chemical Works, 162 N.L.R.B. No. 48, 64 L.R.R.M.(BNA) 1011, 1016 (1966)?

Because RPM seeks to sever a group of employees from an existing unit, it must also satisfy the requirements of 8 AAC 97.025(b) and state,

(1) why the employees in the proposed bargaining unit are not receiving adequate representation in the existing unit;

(2) whether the employees in the proposed bargaining unit are employed in jobs that have traditionally been represented in the same unit;

(3) why the employees in the proposed unit have a community of interest that is not identical with that of the employees in the existing unit;

(4) how long the employees in the proposed bargaining unit have been represented as part of the existing unit; and

(5) why the grant of the petition will not result in excessive fragmentation of the existing bargaining unit.

a. Adequacy of representation.

The adequacy of representation by the current bargaining representative must be considered to determine whether severance is appropriate. The system favors stability and continuation of existing bargaining units, but a bargaining representative’s inadequate representation would justify disrupting the status quo. RPM raises a question of a conflict during the last negotiations between the interest of two positions in the engine department and the interest of other members of the unlicensed unit. A serious and substantial conflict between the interests of members of a unit could interfere with the adequacy of the representation of some of the members. See Public Safety Employees Ass’n (Park Rangers) v. State, Decision & Order No. 209, at 17 (Nov. 13, 1996).

In this case, RPM maintains that the small size of the engine room department compared to the other departments has resulted in inadequate representation. RPM describes the engine department as "the proverbial ‘odd man out.’" Prehearing Statement, at 6. In terms of voting strength, Romey described the engine department positions as a minority -- 12 percent of the unit, although he did admit that the purser department was smaller. Tr. 282.

RPM’s main complaint about representation concerns wages. RPM believes the positions in the engine department should be paid more. As evidence RPM provided a wage comparison of Southern Illinois ferry workers. Housekeepers there are paid $6.99 per hour and junior oilers and assistant engineers are paid $13.94 per hour. At AMHS, the stewards earn $15.35; the wipers earn $15.77; the oilers, $16.85, and the junior engineers earn $18.37. Tr. 73. The spread is narrower than in Illinois. RPM also provided information on wages paid in Michigan. In the American Marine Officers Union the hourly wages are $10 to ordinary seaman, $13.94 to junior engineers, $8 to bartenders, $10 to cooks, and $5.50 to customer service. Tr. 84. However, these comparisons do not prove that the engine department is underpaid. Job duties and working conditions may be very different in Illinois and Michigan. Market pressures may also differ. We cannot draw from this evidence the conclusion that the oilers and junior engineers are underpaid. See Tr. 77.

There does, however, seem to be some consensus during the most recent negotiations that the oilers and junior engineers needed a pay raise to keep the State competitive in the marketplace, i.e., to recruit and retain employees in the positions. Tr. 659-660, 666. The State and the IBU initially negotiated a raise of $.60 for oilers and $1.10 for junior engineers. Tr. 288. There was also a 3.5 percent across the board increase for all members of the unit except the entry level stewards to create more of a spread between the entry level and other positions. Tr. 291, 362. The IBU membership ratified the agreement but the legislature did not fund it. Tr. 270. After the legislature’s rejection of the agreement, the IBU was proceeding toward a strike. Tr. 271. It also returned to the bargaining table with the State. When Romey learned of a new tentative agreement between the IBU and the State without the engine department increase, he felt betrayed. Tr. 273. The new agreement provided a $950 signing bonus to all unlicensed employees but omitted any specific increase for the two engine department positions. The impact on the two engine department positions, according to Romey’s estimate, was significant -- $15, 000 for a junior engineer over the three-year life of the contract. Tr. 283. Romey believes IBU should have held to the earlier agreement even if it meant a strike. Tr. 293.

It is difficult to demonstrate a problem with representation in bargaining because there are so many variables that can affect negotiations. It also can be unfair to second guess the negotiators. See Tr. 290, 666. With that caveat we look at the evidence of the negotiations. When the State and IBU returned to the negotiating table, administration commissioner Mark Boyer stated that he instructed the State’s negotiators to "take everything off the table." Tr. 659. He described the State’s general strategy to offer a one-year agreement without a wage increase and a second three-year agreement to follow, with up to a 1.55 percent increase, capped at 1.5 percent the consumer price index. Tr. 660. The State settled in bargaining with the IBU for this amount and the signing bonus of $950. The State’s concern was the "money" rather than how it was distributed. Tr. 663.

The IBU negotiating team initially had included Bud Kenyon as the engine department representative on the negotiating team. Usually executive board members serve as negotiators but Kenyon was appointed by IBU chairman Rusty Lluellyn. Tr. 379; see Exh. 124. Kenyon stepped down after two years after the second tentative agreement he had helped negotiate was rejected by the IBU membership. Tr. 362. Tom Streeper, a wiper, took over and was involved in negotiating the agreement that was rejected by the legislature. Tr. 362. Streeper was also on the team that returned to the table after the legislature did not fund the agreement.

Streeper described the first session after the return to negotiations with the State. The State presented its position. It did not include a wage increase for the oilers and the junior engineers. Streeper passed a note to Bob Provost, the IBU regional director and spokesperson, to ask about raises for juniors and oilers. Provost did ask the State’s representative Mila Doyle. She said it was no longer a viable position for the state. Tr. 613. There was no more discussion about the raises. Tr. 618, 630-631.

IBU representatives Provost and Streeper believed the engine department raises were not an option. The State’s commissioner of administration indicates that the money in the agreement could have been structured differently. Romey certainly believes the IBU should have fought harder for the engine department position raises. The result was that two positions in the engine department lost ground in wages under the second agreement while the entry level stewards gained ground.

At some point following the negotiations the IBU executive board met with IBU engine department members about the negotiations. Romey wanted the IBU to withdraw from the agreement. Tr. 643. What happened next is hard to determine, but Romey worked with the IBU national president, and IBU made some efforts to respond to engine department concerns. Tr. 275. After two or possibly three meetings, the IBU changed its constitution or by-laws for a department-by-department election of executive board representatives and negotiators. Tr. 279, 453-454. Formerly, the department representatives were voted on by the membership as a whole. In addition, IBU adopted department by department ratification of collective bargaining agreements. Tr. 322. This change gives any one of the four departments veto power over the contract. Tr. 322. For example, if a majority of the engine department employees agreed with Romey about the most recent agreement, under this change the agreement would not have been ratified. These changes are genuine reforms responding to the issues raised by Romey.⁴

We cannot predict what would have happened if the IBU had more vigorously sought the oilers and junior engineers’ raise. We cannot speculate about how the State would have responded, about how wages in another tentative agreement could have been divided among the various positions and still been ratified by IBU’s members, or about how the entire unit would have responded to a call for a strike if another agreement was not reached and negotiations deadlocked. However, we can conclude that RPM’s evidence raises a question about the adequacy of representation. But we can also conclude that IBU has responded

meaningfully to those concerns by its changes to the election and ratification procedures, which insures a greater say by each department over the contract.

Another issue of concern that RPM raised was the desire of at least some engine department employees to work a two-week on and two-week off schedule. IBU did respond to the issue and thereby provided adequate representation. It took the issue to the State, and the State said no. Exh. 140; Tr. 388.

A third complaint about the adequacy of IBU’s representation is Rule 25. Senior employees working in unlicensed IBU positions may have a license and qualify for licensed positions in either the licensed engineering or deck units. David Barnes, for example, works in a permanent IBU position but also dispatches to a position in MEBA. His problem is that, under Rule 25, if he works too many hours outside of the unit, he risks losing his permanent job in the IBU unit. Tr. 178. If Barnes were to work more than 26 weeks in a licensed capacity, Tr. 247, he would forfeit his permanent status -- his permanent bid in the unlicensed unit -- and he would go on the relief list. Tr. 234. Loss of permanent status would mean the loss of work time. Although he had higher seniority, he would be dispatched after persons with permanent bid positions. Tr. 236. Barnes has 15 weeks of work as a licensed engineer in four years of being dispatched out of MEBA. Tr. 252. The 26 weeks is a career total. Tr. 267. We disagree that this complaint reflects on the adequacy of IBU’s representation of the engine department. It is a compromise between the competing interests of those members who are seeking a permanent position and those members who have a position but seek to progress to a licensed position. The Rule has been changed over the years to increase the time that could be worked outside the unit before a permanent position was lost. Exh. 120. IBU has also polled its membership on whether IBU should undertake to change the rule. Exh. 124. We cannot conclude that failure to expand that time demonstrates any inadequacy in IBU’s representation.

In the area of grievances, IBU demonstrated that it represents members in the engine department in the area of employee grievances. Tr. 467. It has pursued a grievance on behalf of Romey. Tr. 466. Exhs. 125-131.

The engine department does participate in the governance of IBU. Unlicensed engineers have a voice in union affairs. Two executive board positions are reserved to the engine room. Tr. 386. Barnes has served as a ship’s delegate, equivalent to a shop steward. He was on the negotiating committee in 1988. Tr. 238. William Sherman, a junior engineer, is a shipboard delegate. Tr. 599. A junior engineer, Mark Hutson, has served as a patrolman for two years. Tr. 576-577. The patrolman is an elected, paid IBU position. Tr. 578.

IBU adequately represents the unlicensed engine department employees.

b. Tradition of representation.

In Illinois, Washington, and Alaska, public ferry workers are organized in different ways, and a tradition of representation for these workers did not emerge. The Seafarers International Union in Algonac, Michigan, represents unlicensed engine room employees but the composition of the unit was not described. Tr. 83. The American Marine Officers Union in southern Illinois represents in one unit unlicensed engineers, licensed engineers, and mates. It does not represent the unlicensed deck employees. The unlicensed engineers in the unit, however, have a separate agreement. Tr. 114. The Washington ferry system unlicensed employees formerly were in a unit defined much like IBU’s AMHS unit. IBU represented the Washington unlicensed engine room workers with the deck, terminal, and information employees plus shore side maintenance workers. However, in 1988 the unlicensed engine room employees were permitted to vote in an election to either remain in the unlicensed unit represented by the IBU or move to the licensed engineers’ unit represented by the Marine Engineers Beneficial Association (MEBA). District 1, Pacific Coast District National Marine Engineers Beneficial Ass’n v. Inlandboatmen’s Union of the Pacific, Marine Employees’ Commission case no. 3-87. The employees apparently chose MEBA, which now represents them. Tr. 152.

The RPM did not present any evidence or case law showing precedent for a unit composed solely of unlicensed engine room employees.

c. Community of interest.

The members of the existing unlicensed unit share a genuine and substantial community of interest demonstrated by the movement of members between departments and other factors discussed in subsection 4.b., supra. On the other hand, the unlicensed engine department does not constitute an identifiable group with a separate community of interest. The employees move between departments so they are difficult to identify. Those who work mainly in the engine room share significant working conditions with the licensed engine room employees and therefore, alone, do not share a significant community of interest. Tr. 154-155.

d. Time in existing unit.

The placement of the unlicensed engine department employees in the unlicensed unit represented by IBU dates from 1963, predating the effective date of PERA in 1972.

e. Excessive fragmentation.

Severing the engine department employees from the unlicensed unit would cause excessive fragmentation. See discussion, subsection, 4.g., supra.

f. Mallinckrodt Chemical Works.

This Agency also takes into account the factors that the NLRB reviews in craft severance cases. See Mallinckrodt Chemical Works, 162 N.L.R.B. No. 48, 64 L.R.R.M.(BNA) at 1016; International Bhd. of Elec. Workers v. Fairbanks North Star Bor. Schl. Dist., Decision & Order No. 153, at 3-4 (Mar. 24, 1993). The evidence in this case did not establish that unlicensed engine department employees are a distinct and homogenous craft. A career ladder at AMHS can proceed in any of the departments and the unlicensed employees have a lot of flexibility to move between departments.

One of the factors addressed in Mallinckrodt Chemical Works requires attention in this case -- the minimal qualifications of the petitioner, including that union's experience in representing employees like those involved in the severance action. Public Safety Supervisors Ass’n v. State, Decision & Order No. 188, at 26 (May 25, 1995), affirmed (Jan. 22, 1997); International Bhd. of Elec. Workers v. Fairbanks North Star Bor. Schl. Dist., Decision & Order No. 153, at 3-4. RPM was formed for the purpose of representing these employees. It has no track record or organizational experience in representation. Most important, RPM does not appear to be a viable organization; Romey talked about it as in the process of being established. Tr. 303, 338. Its constitution and by-laws have not been formally adopted. Tr. 303, 314 & 338. It did not file copies of the by-laws and constitution, as required by 8 AAC 97.025(a)(5), until after much prodding by the Agency. The dues are set by the constitution at $40 per month with an initiation fees of $600, but the constitution has not been approved and no dues or fees have been collected. Tr. 310; Exh. 155. RPM has not conducted any formal meetings. Tr 339.

RPM hopes to have assistance from MEBA, possibly eventually joining MEBA. MEBA was vague about the kind of support it could provide, although it did appear to leave the door slightly ajar to assisting RPM. Tr. 157.

Such hopes are small foundation for representing employees in collective bargaining and grievance arbitration with the State of Alaska. The record provides no assurance that RPM is an organization that can represent a bargaining unit. We conclude that RPM has not demonstrated its qualifications to competently represent the unlicensed engine department employees.

Consideration of craft severance issues does not support moving the unlicensed engine department employees from the unlicensed unit.

Conclusions of Law

1. The State of Alaska is a public employer under AS 23.40.250(7); RPM and the IBU are organizations under AS 23.40.250(5); and this Agency has jurisdiction under AS 23.40.090 and AS 23.40.100 to consider this case.

2. RPM as the petitioner has the burden to prove each element of its claims by a preponderance of the evidence. 8 AAC 97.350(f).

3. AS 23.40.240 does not prohibit this Agency from examining the question of severance and of the appropriateness of the unit proposed by RPM in this petition.

4. RPM timely filed its petition under AS 23.40.100 and 8 AAC 97.060(e)(3).

5. 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, the unlicensed unit is the appropriate unit for the unlicensed engine department employees.

6. 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, a bargaining unit composed solely of unlicensed engine department employees is not an appropriate unit.

7. Creating an additional bargaining unit of AMHS employees would result in excessive fragmentation.

8. RPM has not satisfied the requirements in 8 AAC 97.025(b) to sever the engine department employees from the unlicensed ferry workers unit represented by IBU.

9. Balancing the factors set forth in Mallinckrodt Chemical Works, 162 N.L.R.B. No. 48, 64 L.R.R.M.(BNA) at 1016, we cannot conclude that unlicensed engine department employees would be more appropriately represented in a separate craft unit.

10. RPM has not established the requirements needed to sever a group of employees from an existing bargaining unit and has not established that such a group, if so severed, would be an appropriate bargaining unit under AS 23.40.090.

ORDER

1. The petition to sever from the unlicensed Alaska Marine Highway System employees a unit of unlicensed engine department employees and represent them in bargaining, which was filed by RPM, is DENIED and DISMISSED; and

2. The State of Alaska, Alaska Marine Highway System, 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

Raymond P. Smith, 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 RPM vs. STATE OF ALASKA and INLANDBOATMEN'S UNION OF THE PACIFIC, ALASKA REGION, MARINE DIVISION-ILWU, dated and filed in the office of the Alaska Labor Relations Agency in Anchorage, Alaska, this 19th day of February, 1997.

Victoria Scates

Administrative Clerk III

This is to certify that on the _____day of February, 1997, a true and correct copy of the foregoing was mailed, postage prepaid to

Signature

¹However, an argument could be made that AS 23.40.240 insulates Alaska Marine Highway System bargaining units from the impact of 8 AAC 97.990(a)(5) and 8 AAC 97.090 (a)(1), which together prohibit State bargaining units from combining supervisory employees with nonsupervisory employees. See 8 AAC 97.090(a).

²See, for example, the NLRB Casehandling Manual § 11024.1 (Sept. 1989), in which The National Labor Relations Board Casehandling manual sets a very clear deadline for the filing of evidence of employee interest:

In the event the petitioner does not submit evidence of representation on filing the petition, it must supply such evidence within 48 hours after filing the petition but in no event later than the last day on which the petition might be timely filed.

If petitioner’s evidence of interest is found to be less than 30 percent of the employees in the unit as disclosed by a check of the employer’s list of unit employees, a reasonable time to cure the deficiency may be given at the Regional Director’s discretion where warranted by the circumstances. However, in no event will the time to submit such additional evidence of representation be later than the last day on which the petition might be timely filed.

³8 AAC 97.480 also provides that the Agency may waive or relax the requirements of a regulation where strict adherence would work an injustice.

⁴Romey has filed charges against Provost and Streeper for their "misrepresentation" at the negotiations. Exh. 121; Tr. 644, 281 The "misrepresentation" was the promise that IBU would stick by the first agreement when it polled the members for a strike vote, which it then "violated" when it retreated from the agreement and reached a new tentative agreement. Tr. 293.

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