CASE NO. 97-692-RC

ALASKA LABOR RELATIONS AGENCY
3301 EAGLE STREET, SUITE 208
P.O. BOX 107026
ANCHORAGE, ALASKA 99510-7026
(907) 269-4895
Fax (907) 269-4898

CASE NO. 97-692-RC

DECISION AND ORDER NO. 218

Digest: Upon consideration of the rights under PERA and the requirement that units be as large as is reasonable, the unit appropriate for bargaining is the proposed unit of adjunct faculty, based on such factors as community of interest, wages, hours, and other working conditions, the history of collective bargaining, and the desires of the employees. Participation in the election directed will be governed by 8 AAC 97.130.

DECISION

Statement of the Case

On December 10, 1996, United Academic Adjuncts-AAUP/AFT/APEA, AFL-CIO (United Academic Adjuncts), filed this petition to represent the adjunct faculty at the University of Alaska. On January 2, 1997, this Agency found that the United Academic Adjuncts had satisfied the showing of interest requirement. The University of Alaska posted notice of the petition at various work sites on or before January 20, 1997. On February 4, 1997, the University filed a notice of objection to the petition for the reasons that the adjuncts are not permanent employees under 8 AAC 97.025(3); they do not share a community of interest; and the desires of the adjuncts cannot fairly be determined. The petition was set for hearing on April 1-3, 1997. On March 25, 1997, the University of Alaska moved to continue the hearing. At a status conference on March 26, 1997, the hearing examiner denied the motion, and the petition was heard on April 1 and 2, 1997. The record closed on April 2, 1997, at the conclusion of the hearing.

Panel: Alfred L. Tamagni, Sr., Chair, Robert A. Doyle, and Karen J. Mahurin, Members, participating in person.

Appearances: James A. Gasper, Jermain, Dunnagan & Owens, P.C., for complainant United Academic Adjuncts-AAUP/AFT/APEA, AFL-CIO; Parry Grover and James H. Juliassen, Davis Wright Tremaine LLP, for respondent University of Alaska.

Procedure in this case is governed by 8 AAC 97.350. Hearing examiner Jan Hart DeYoung presided.

Issues

1. Are adjunct faculty "public employees" under the Public Employment Relations Act with rights to bargain collectively?

2. Are adjunct faculty an appropriate bargaining unit under AS 23.40.090?

3. Do the requirements for voter eligibility in 8 AAC 97.130 restrict voting to such a small proportion of the adjunct faculty that the election would violate the principle of self-determination?

Summary of the Evidence

A. Exhibits.

United Academic Adjuncts offered the following exhibits, which were admitted into the record:

1. Adjunct Faculty Handbook (Published Sept. 1996);

2. Syllabus/Letter #1 - Summer ‘97 (Mar. 11, 1997);

3. Excerpts of Senate Bill No. 151 (Mar. 24, 1997);

4. Alaska Labor Relations Agency Decision and Order No. 202 (Apr. 29, 1996);

The University offered the following exhibits, which were admitted into the record:

A. Adjuncts active indicating location, salary, and type of course taught (Dec. 6, 1996);

B. Adjuncts faculty salary (Dec. 6, 1996);

C. Maximum, minimum, and average salaries for adjuncts active on December 6, 1996 (Feb. 4, 1997);

D. Numbers of adjuncts per location (updated Feb. 4, 1997);

E. Fall 1996 courses taught by adjunct faculty by course type (undated);

F. Number of adjunct faculty who teach courses by course type (undated);

G. Fall 1996 adjunct faculty salary level, course load and SCH (undated);

H. Adjuncts during fall 1996 and spring 1997 with analysis of turnover rate (Statistics);

I. Not admitted (duplicate of exhibit 1);

J. University of Alaska Southeast faculty handbook (Aug. 17, 1996);

K. University of Alaska Fairbanks faculty appointment and evaluations policies (Dec. 1996);

L. List of adjuncts during past four years (undated);

M. Report from UAA adjunct faculty to Provost Brewer (Apr. 26, 1996);

N. UAA summary of student and faculty data fall semesters 1991-1996 (undated);

O. UAS letter of appointment (Jul. 19, 1996);

P. UAS letter of appointment (Nov. 15, 1996);

Q. UAA Sample letter of appointment, FY97 (undated);

R. Adjunct (part-time, temporary) faculty instructions for applicants (Rev. June, 1995); and

S. Exhibit L summary (Mar. 31, 1997).

B. Testimony.

United Academic Adjuncts presented the testimony of Carolyn Kremers, Robyne, and Steve Levi, adjunct faculty; and Norman Holsinger, National Representative, AAUP/AFT/APEA.

The University of Alaska presented the testimony of Edward Lee Gorsuch, UAA Chancellor; Marshall Lind, UAS Chancellor; Joan Wadlow, UAF Chancellor; Hayden Green, Dean, College of Business & Public Policy; and Pat Pitney, Director of Institutional Research.

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. The United Academic Adjuncts-AAUP/AFT/APEA, AFL-CIO, seeks to represent the adjunct faculty employed by respondent University of Alaska.

2. The University of Alaska is governed by a board of regents and divided into the University of Alaska Fairbanks, the University of Alaska Anchorage, and the University of Alaska Southeast. The three universities in the system consist of a number of facilities throughout the state.

3. History. The faculty of the University currently is divided into three groups for purposes of collective bargaining:

a. The first group is a bargaining unit predating the consolidation of the community colleges with the University in 1987. It consists of positions formerly employed by the community colleges; they are represented by the Alaska Community Colleges’ Federation of Teachers, Local 2404, AFT, AFL-CIO (ACCFT).

b. The second, newer group is a bargaining unit represented by the United Academics-AAUP/AFT/APEA, AFL-CIO. It can be described generally as those regular, nonadjunct faculty, including department heads, counselors, librarians, advisors, and visiting faculty among others, who are not represented by ACCFT.

c. The third group consists of the faculty not included in either of the two recognized bargaining units -- the adjuncts. This third group is the unit United Academic Adjuncts seeks to represent.

4. The third group, the proposed bargaining unit, is more specifically described as follows:

Included: All adjunct faculty in the following ranks: instructor, assistant professor, associate professor, professor, research assistant professor, research associate professor, research professor, visiting instructor, visiting assistant professor, visiting associate professor, visiting professor, instructional technician, substitute faculty, temporary faculty credit, and temporary faculty non-credit employees of the University of Alaska.

Excluded: All employees who are recognized by the University of Alaska as represented by the Alaska Community College Federation of Teachers, Local 2404, AFL-CIO who are as follows: faculty, librarians and counselors of a community college established by the University of Alaska Board of regents; faculty, academic counselors and librarians whose principal assignment is at an extended site of the University of Alaska (other than cooperative extension); faculty whose principal assignment is vocational-technical instruction; and faculty who are employed to teach exclusively at the lower division level with a single part service agreement.

All employees who are recognized by the University of Alaska as represented by the United Academics-AAUP/AFT who are as follows: all regular, non-adjunct faculty in the following ranks: instructor, assistant professor, associate professor, professor, research assistant professor, research associate professor, research professor, visiting instructor, visiting assistant professor, visiting associate professor, visiting professor, cooperative extension faculty and/or agents, post doctoral fellows.

Librarians, counselors, rehabilitation faculty, advisors, cooperative extension agents, and other academically related personnel. Department heads/chairs, and those administrators who are elected by the faculty. Administrators who are not elected by the faculty, supervisors, aides, assistants, and office clerical personnel.

5. This group on December 6, 1996, consisted of about 1018 persons. Exh. A (minus those persons holding other University positions); Exh. G.

6. Wages. The adjuncts’ wages support the proposed unit. The total compensation of adjuncts can vary from a piece rate for correspondence teachers paid per paper graded, shown as "0" on the pay scale to a salary of $45,600, which was paid to a professor who is also receiving retirement benefits. Exhs. B & C. These two examples are exceptional, however. Most of the adjuncts are paid on the same scale. Only 74 of the 1018 adjuncts were paid on a "piece rate" basis. Exh. G. The large majority of the adjuncts are compensated on the basis of a salary scale. The salary is set for the duration of a teaching assignment. The scale has three levels and placement on the scale depends on the number of credits taught and the adjunct’s longevity with the University. Exh. B. The scale has not changed, i.e., been adjusted for inflation, since 1980. Adjuncts do not receive health benefits but can participate in a social security replacement plan depending upon the salary paid the adjunct and the date the adjunct first began teaching for the University. Exh. 1, at 15 (UAA). Because the system of compensation is the same for most of the adjuncts, it contributes to their appropriateness as a bargaining unit.

7. Hours. Adjuncts can teach up to 15 credits per year, which is a part time workload. Since most classes are three credits, adjuncts can teach up to five classes per year. Teaching requires significant time outside of the classroom. The three adjuncts testifying indicated that, in addition to actual instruction, their work required significant time for office hours with students, preparation, and reviewing and correcting student work. The time of day that those hours are worked also may vary, although the consensus appeared to be that adjunct faculty teach more classes outside of the regular work day than the other faculty. Although the workload and the time the work is performed can vary, all of the adjuncts work only part time for the University.

8. Other working conditions. Adjuncts work throughout the University system statewide. The largest number, however, is concentrated in Anchorage -- 444 of the 1018 total in the fall of 1996. Exh. D. The 1788 courses taught by adjuncts cover the full range of courses offered at the University from community education, vocational technical to traditional courses designed to culminate in a degree. Exhs. E & G. This division, however, should not obscure an important similarity in the working conditions of the adjuncts -- they all teach and do not have other work duties. Their work contrasts with the regular faculty in the ACCFT and United Academics bargaining units who work bipartite or tripartite workloads, which means they have additional requirements for community service, in the case of a bipartite workload, and for community service and research, in the case of a tripartite workload.¹

9. Adjuncts may work on a campus, such as a university, one of the extended sites like Tanana, or on a military base. Adjuncts employed with the distance education program may work over the telephone from home, rather than in a classroom. Adjuncts keep office hours with students and may work from an office provided by the University or from home.

10. Adjuncts have academic freedom to determine the course content of the classes they teach within the course description provided to the students.

11. Adjuncts interact among themselves and with the regular faculty. They may attend faculty meetings but do not participate in University governance.

12. The adjunct faculty at two of the three university campuses, Anchorage and Southeast, have faculty handbooks specific to them. Exh. 1 & Exh. J. UAF covers adjuncts in its regular faculty handbook. Exh. K. (covering hiring and evaluation only). The UAA and UAS handbooks address how course requirements are communicated, student evaluations, attendance policy, and university grading policy, in addition to personnel policies. Exh. 1 & Exh. J. These handbooks insure similar working conditions across the unit and also show that the organizational structure of the University supports the proposed unit: the University currently addresses the terms and conditions of employment for this group as a unit. Exh. 1.

13. Desires. One adjunct faculty member, Steve Levi, testified in support of the proposed unit, but indicated that the faculty group seeking recognition was the group the University would describe as the "regulars," i.e., those employees seeking a regular, continuing employment relationship with the University.

14. Community of interest. The adjuncts share a significant community of interest. In part this community stems from their interest in improving their compensation and working conditions. Adjunct faculty testifying expressed concerns about the insecurity of working as an adjunct, the absence of benefits, and the low salary level. Moreover, their part time status, ineligibility for tenure, and lack of participation in University governance distinguish them from other faculty at the University.

15. Prohibition against fragmentation. The largest reasonable unit that would avoid unnecessary fragmentation is the statewide unit of all adjunct faculty, as proposed by United Academic Adjuncts. The University appears in large part to treat this group organizationally as a unit. Exh. 1 (especially at 21 regarding UAA Adjunct Faculty Council); Exhs. J & M (report from UAA Adjunct Faculty Council).

Discussion

1. Are adjunct faculty "public employees " under the Public Employment Relations Act with rights to bargain collectively?

One basis for the University’s objection to the petition is its argument that the right to bargain collectively is limited to permanent and probationary employees. The phrase "permanent and probationary" modifies the word "employees " in 8 AAC 97.025(a)(3) (emphasis added):

(a) A petition for certification of public employee representative filed by a labor or employee organization must contain the following information:

(1) the name, title, address, and telephone and facsimile machine numbers of the public employer's contact person;

(2) a description of the bargaining unit claimed to be appropriate for purposes of exclusive representation by the petitioner that generally identifies the work locations and the classifications of employees to be included or excluded and the approximate number of employees in the unit;

(3) a statement that 30 percent of the permanent and probationary employees in the proposed bargaining unit want to be represented by the petitioner for collective bargaining purposes; . . .

This regulation sets out the showing of interest that a labor organization must demonstrate in support of its representation petition. "Temporary and probationary " is not defined and does not appear elsewhere in the regulations or in the Public Employment Relations Act. The University argues that the phrase restricts participation in collective bargaining to permanent and probationary employees and thereby excludes the adjuncts.

United Academic Adjuncts offers an explanation for the phrase that would not limit the right to bargain collectively or prohibit adjuncts from bargaining under PERA. Before April 14, 1995, the Agency defined "employee" to mean, in part,

the same as "public employee" in AS 23.40.250 and is limited to a person employed by a public employer in a permanent or probationary status, including a part time or seasonal employee, who is entitled to receive retirement and vacation benefits from the public employer; . . . .

8 AAC 97.990(2) (eff. July 22, 1993, reg. 127) (emphasis added). In a 1994 case the Agency construed this definition to preclude state nonpermanent employees from collective bargaining rights under PERA. Alaska State Employees Ass’n/AFSCME Local 52, AFL-CIO v. State, Decision & Order No. 170 (Jan. 26, 1994). Upon appeal, the superior court reversed the decision and concluded that the regulation defining "employee" conflicted with the broader statutory definition of "public employee" in AS 23.40.250(6):

"public employee" means any employee of a public employer, whether or not in the classified service of the public employer, except elected or appointed officials or superintendents of schools.

The superior court held that nonpermanent employees were included in the statutory definition and covered under PERA. State v. Alaska State Employees Ass’n/AFSCME Local 52, AFL-CIO, case no. S-6540, slip op. at 4 (Supreme Ct., Jan. 24, 1996) (memorandum opinion and judgment). Following the court’s decision, the Agency repealed its narrower definition of "employee" in 8 AAC 97.990(2) (eff. April 14, 1995, reg. 134).

Even if the phrase "permanent and probationary" in 8 AAC 97.025(a)(3) were intended to have the effect of restricting bargaining to permanent and probationary employees, a court would likely find the regulation to be in conflict with the statutory definition of "public employee" in AS 23.40.250(6), which would control. The more likely explanation for the phrase in the regulation, however, is the one offered by the United Academic Adjuncts -- the reference to " permanent and probationary" employees in 8 AAC 97.025(a)(3) was overlooked when the Agency repealed its definition of " employee" in 8 AAC 97.990(2). We conclude that the repeal of the definition of "employee" in 8 AAC 97.990(2) demonstrates our intent that temporary or short term employment status should not limit employees’ right to bargaining collectively.

Whether PERA covers adjuncts therefore will depend on the statutory definition of "public employee" in AS 23.40.250(6). We conclude that the adjunct faculty are "public employees." They have the characteristics of employees; for example, they are paid compensation as employees rather than as independent contractors. Moreover, the University, a public employer under AS 23.40.250(7), does not contest the existence of an employment relationship. Because the adjunct faculty do not fall within the exceptions in AS 23.40.250(6) for " elected or appointed officials or superintendents of schools," they are "public employees" under PERA with rights to self-determination and collective bargaining. See also In re Somerset County College and Somerset County College Faculty Federation, Local 2375, AFT, AFL-CIO, 13 New Jersey Pub. Employee Rep. 18045 (Dec. 22, 1986) (finding adjuncts to be public employees within the meaning of the New Jersey Act).

2. Are adjunct faculty an appropriate bargaining unit under AS 23.40.090?

The composition of bargaining units is governed by AS 23.40.090:

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. (§ 2 ch 113 SLA 1972)

Applying these criteria to define an appropriate unit is especially difficult in this case. The adjunct staff share similar compensation and hours. They share the absence of any right to continued employment after the school term ends. The working conditions are similar because they all work with students, with the responsibility to instruct. They differ in how they instruct. The subject matter may vary from vocational, technical, remedial, traditional, or graduate level courses. Teaching duties can vary from direct teaching to support for purchased videotape instruction in the Distance Education Department. The educational backgrounds of the adjuncts can vary from possession of special skills to "terminal" degrees. Each of the three adjuncts described a high level of interaction with other adjuncts and other University faculty. Of the three adjuncts testifying, one works principally out of his home and checks in with the University for mail and telephone messages and two appear to spend more time in office space provided by the University. While the proposed unit covers a broad range of work, skills and working conditions, its members share a fundamental characteristic -- all of them teach students. They also share working conditions that are a product of their part time and short term employment status. These similarities could provide a basis for a sense of community among the adjuncts.

The University divided the adjuncts into three groups based on the continuity of their employment relationship with it and its perception of the aims or goals of the adjuncts: the regulars, the repeaters, and the sporadic employees. The regulars are employed on a regular basis and are seeking permanent employment status with the University. The repeaters may regularly or periodically teach a course but they have a principal occupation outside of their instructional duties. The repeaters include the professionals, such as teachers, doctors, lawyers, and business executives, and persons with a special skill. The aim of the repeaters may be to keep fresh in their subject area, to teach because they enjoy it, or to contribute to the community but their principal aim is not remuneration or employment. The third group consists of persons who teach once and may never teach again -- the sporadic adjuncts. The University appears to be arguing that these divisions are strong enough to preclude a community of interest among the adjunct staff and make a unit of adjunct faculty inappropriate under AS 23.40.090.

One concern we have with the University’s argument is that it emphasizes the career goals or aims of the workers, which is not one of the factors listed in AS 23.40.090. But the issue the University raises about the continuity of the relationship between it and the adjuncts is one other agencies have found important to consider. The evidence in this case shows a significant level of continuity. The showing of interest for the adjuncts was based on the fall 1996 term, which had 1018 adjunct faculty -- defined as instructional staff employed under a contract for one school term and who do not have other regular employment with the University. The spring 1997 term has 944 adjuncts, 614 of whom also taught as adjuncts in the fall term -- a rate of return of 65 percent. This level of continuity has been found sufficient in other jurisdictions. An Illinois public sector labor relations agency found that a 61 percent rate of return provided adjuncts with sufficient assurance of rehire to preclude the adjuncts from the category "short-term employee." Harper College and Harper College Adjunct Faculty Ass’n, 9 Pub. Employee Rep. for Illinois 1104, Westlaw Op. at 6 (July 7, 1993); see also Case-Swayne Co., Inc., 209 N.L.R.B. No. 160, 85 L.R.R.M.(BNA) 1598 (1974) (examining seasonal employees). Although adjuncts do not have any contractual or other right to a teaching position or renewal of their contract after a term ends, a significant number of them -- 65 percent -- do return.

In examining whether the adjuncts are an appropriate unit, we first examine the unit proposed by the petitioner. While AS 23.40.090 provides the Agency with broad discretion to establish the bargaining unit, we believe the mandate to "to assure to employees the fullest freedom in exercising the rights guaranteed" by PERA means that special consideration should be given to the unit the petitioner seeks to represent. Presumably, in most cases, the unit sought by the petitioner is the unit supported by the employees signing interest cards in support of representation. Only where the criteria named in AS 23.40.090 require a different unit, should the Agency redefine the unit. But c.f. International Brotherhood of Electrical Workers Local 1547 v. Kodiak Island Borough, DOLLRA Decision & Order No. 90-5 (May 4, 1990) (adding mental health clinic to work group sought for representation), affirmed on other grounds, Kodiak Island Borough v. State, 853 P.2d 1111 (1993). Moreover, the responsibility of this Agency is not to determine the most appropriate unit. We rejected this argument in United Academics-AAUP/AFT, AFL-CIO v. University of Alaska, Decision & Order 202, at 13 (April 29, 1996), in which we found, consistent with the National Labor Relations Board, that a unit need only be an appropriate unit to meet the requirements of AS 23.40.090. As stated in that case, "The Agency does not review the work place as a whole and determine the most appropriate unit. The focus is the proposed unit." Thus, we consider whether the unit proposed by United Academic Adjuncts is the appropriate unit.

This approach is followed by other public sector labor relations agencies. See e.g., Elgin Community College District #509 and Elgin Community College Faculty Ass’n, 8 Pub. Employee Rep. for Illinois 1092, Westlaw Op. at 14 (Aug. 18, 1992) (Illinois Educational Labor Relations Board found proposed unit adding part-time faculty, librarians and counselors to existing faculty unit inappropriate); Northern Illinois University and University Professionals of Illinois, IFT-AFT, AFL/CIO, 8 Pub. Employee Rep. for Illinois 1073, Westlaw Op. at 10 (July 6, 1992) (Illinois Educational Labor Relations Board); Bowling Green State University Faculty Ass’n, AAUP and Bowling Green State University, 10 Ohio Pub. Employee Rep. 1577, Westlaw Op. at 24 (Oct. 4, 1993) (Ohio State Employment Relations Board will apply statutory factors to proposed unit without initial consideration of other possible appropriate units);

Turning to AS 23.40.090, we note the history of collective bargaining is a significant factor in this case. Granting the United Academic Adjuncts petition could result in three faculty bargaining units at the University. Dividing faculty into three groups may not make the most appropriate units; it risks fragmentation of the faculty. But the reason for the division is an historic one and a very reasonable and necessary one. Before consolidation none of the University faculty had exercised bargaining rights. The organized faculty were employed by the community colleges. Even after consolidation these faculty maintained a strong community. That community, some significant differences in courses, workload, location, and educational background, combined with a long history of separation for collective bargaining unit purposes made a second unit of faculty appropriate. United Academics-AAUP/AFT, AFL-CIO v. University of Alaska, Decision & Order 202.

In this case we are asked to approve yet a third faculty unit. Without this history we might give strong consideration to an accretion to the existing units or even to a single statewide unit of regular faculty. But this history cannot be ignored. To add the adjuncts to the existing two faculty bargaining units could potentially overwhelm them because the numbers of adjunct faculty are so high. It would alter dramatically the character of the two units and potentially disrupt the relationships that have developed.

United Academic Adjuncts touched on this issue when it compared the adjunct faculty to a residual unit. They are the faculty group that was left over after the other faculty bargaining units were created. See discussion J. Feerick, H. Baer, J. Arfa, NLRB Representation Elections § 8.9 (1994 supp.) Without this history, the adjuncts might not comprise an appropriate unit. With this history, the unit becomes very appropriate because the consequence of finding the unit inappropriate would be either to deny bargaining rights to these workers or to splinter the adjuncts into possibly three more bargaining units. Neither outcome is a good one. The first would deny the rights of the adjuncts to choose to bargain collectively, effectively eliminating the rights of those employees guaranteed by PERA. Certificated Hourly Instructors Long Beach City College, CTA/NEA and Long Beach Community College District, 13 Pub. Employee Rep. for California 20195, Westlaw Op. at 4 (Sept. 14, 1989) (authorizing a residual unit of employees left out of existing units who might not otherwise share a community of interest); see also Butte County Part-Time Faculty Ass’n/CWA and Butte Community College District, 12 Pub. Employee Rep. for California 19177 (Oct. 20, 1988). On the other hand, creating additional units is contrary to the mandate against unnecessary fragmentation in AS 23.40.090.

We have concluded that the history of bargaining at the University is a strong factor favoring the proposed unit. The adjuncts, however, do share a community of interest -- their hours of work, exclusion from health benefits, and the application of common personnel practices and pay rates all support finding a community of interest among the adjunct faculty. See In re Civil Service Employees Ass’n, Inc., Local 1000, AFSCME, AFL-CIO and County of Ulster, 22 N.Y. Pub. Employ. Rel. Bd. 3030 (May 25, 1989). Important factors distinguish the adjunct faculty from the faculty in the United Academics and ACCFT bargaining units. The adjuncts do not participate in University governance; they are not eligible for tenure; and there are significant differences between the working conditions of the adjuncts and the faculty represented in the ACCFT and University bargaining units. University of San Francisco, 265 N.L.R.B. No. 155, 112 L.R.R.M.(BNA) 1113 (Dec. 16, 1982). And finally, their academic freedom and their work as teachers all support finding that the adjuncts share a community of interest and support the conclusion that the proposed unit of adjunct faculty is the appropriate unit.

3. Do the requirements for voter eligibility in 8 AAC 97.130 restrict voting to such a small proportion of the adjunct faculty that the election would violate the principle of self-determination?

The Agency addresses eligibility to vote in 8 AAC 97.130. The requirements are plain:

(a) At least 14 calendar days before the date set for the election, or in the case of a mail ballot election, at least 14 calendar days before the date set for mailing ballots to voters, the public employer shall submit a roster of employees eligible to vote to the labor relations agency and to the candidates for representation. The roster must contain the names of eligible employees in alphabetical order and their job titles, classifications, and personal mailing addresses.

(b) To be eligible to vote an employee must be listed on the employment roster of the public employer

(1) four weeks before the date of the election, or in the case of a mail ballot election, four weeks before the date set for mailing ballots to voters; and

(2) on the date of the election, or in the case of a mail ballot election, on the date the ballots are counted. (Eff. 7/22/93, Register 127; am 4/14/95, Register 134)

Participants at the election will be those adjuncts on the University’s payroll near the time set for the election -- four weeks before the ballots are mailed and on the day set for the election tally. This group is not the same group providing the interest cards in support of the petition, although 65 percent of the adjuncts in the spring term also taught during the fall term. The University objects to an election on the basis that many of the adjunct faculty will be disenfranchised by the eligibility rule in 8 AAC 97.130, citing State Labor Relations Agency Order & Decision No. 66 (May 12, 1981). In that case our predecessor, the State Labor Relations Agency, dismissed a representation petition filed by a group of adjunct faculty at the community colleges. The proposed unit was between 500 and 775 adjunct faculty members, but the petitioner supported its petition with only three interest cards. Only three or four of the adjunct faculty apparently met the definition of permanent employee as it was defined in the regulation at that time.² The SLRA dismissed the petition because the petitioner did not show sufficient interest among the unit members for an election, among other reasons. The petition of United Academic Adjuncts does not share this problem. United Academic Adjuncts provided a showing of interest based upon the entire unit it sought to represent, rather than a subgroup of that unit, and the University has not challenged the sufficiency of the showing of interest. The SLRA in the earlier case did not need to determine eligibility to vote because the petitioner did not meet the threshold requirements of a showing of interest and an appropriate unit. Unlike our predecessor, we are faced with a proposed unit that we have found appropriate and whose members have shown a sufficient level of interest in representation to justify an election. These facts do not support a dismissal under the ruling in SLRA Order & Decision No. 66.

The University’s concern is that the adjuncts change from school term to school term and a number of adjuncts who may be employed to teach in the future will not be entitled to participate in the election under the Agency’s eligibility rule in 8 AAC 97.130. While a concern about voter eligibility does not justify dismissing the petition, it does merit examination. If the voter eligibility rules provide an anomalous result, other alternatives, such as the timing of the election, could provide a less drastic solution than dismissal. See e.g., Northern Illinois University and University Professionals of Illinois, IFT-AFT, AFL/CIO, 8 Pub. Employee Rep. for Illinois 1073, Westlaw Op. at 19 (July 6, 1992) (election rules requiring election within 90 days of the filing of the petition would have required election when most members were not employed).

In this case requiring that the election be conducted during a regular school term should provide broad participation in an election without setting additional requirements that might influence the outcome or violate the regulations. An election among the adjuncts this school term in accordance with 8 AAC 97.130 would be close in time to the initial petition and allow adjuncts with a wide range of interests to participate, while still requiring the important nexus of employment. See e.g. Case-Swayne Co., Inc., 209 N.L.R.B. No. 160, 85 L.R.R.M.(BNA) 1598. In Case-Swayne Co., Inc., the National Labor Relations Board approved an election in a seasonal industry when that election was held during a peak employment period. All of the employees working in the unit were allowed to vote. The fact that two-thirds of the employees showed work history during a two-year period was sufficient to show a recurrent pattern of employment.

We therefore conclude that the election should proceed under the Agency’s regulations, including 8 AAC 97.130 governing voter eligibility, but that the election should be timed to allow use of the employment roster for the spring or fall term, whichever is administratively feasible.

Conclusions of Law

1. The University of Alaska is a public employer under AS 23.40.250(7) and the United Academic Adjuncts-AAUP/AFT, AFL-CIO, is a labor organization under AS 23.40.250(5). This Agency has jurisdiction under AS 23.40.100 to consider this petition.

2. Petitioner United Academic Adjuncts has the burden to prove each element of its case by a preponderance of the evidence. 8 AAC 97.350(f).

3. The adjunct instructional staff at the University are public employees, as defined in AS 23.40.250(6).

4. The phrase "permanent and probationary" in 8 AAC 97.025(a)(3) does not have the effect of limiting the rights of adjuncts to seek representation in collective bargaining.

5. Assuring the fullest freedom to exercise rights under PERA requires finding the proposed unit of adjunct faculty an appropriate unit.

6. The factors community of interest, wages, hours, and other working conditions support the conclusion that the proposed unit of adjunct faculty is an appropriate unit.

7. The history of collective bargaining at the University requires finding the proposed unit of adjunct faculty an appropriate unit.

8. The evidence of the desires of the employees was not sufficient to allow us to make a finding addressing the employees’ desires. But see State v. Alaska State Employees Ass’n/AFSCME Local 52, AFL-CIO, 923 P.2d 18, 26. However, in light of the strong evidence offered on the other factors named in AS 23.40.090, we conclude that the absence of such evidence does not require the conclusion that the unit is inappropriate.

9. The prohibition against fragmentation in AS 23.40.090 strongly supports the proposed unit of adjunct faculty.

10. 8 AAC 97.130 establishes eligibility for voting in a representation election.

ORDER

1. The objections of the University of Alaska to the petition of the United Academic Adjuncts-AAUP/AFT/APEA, AFL-CIO for a representation election among a statewide unit of adjunct faculty are hereby denied;

2. The unit petitioned for is the appropriate bargaining unit;

3. An election is directed among the employees in the petitioned bargaining unit under procedures set out in the regulations, including 8 AAC 97.130, addressing eligibility to vote; and

4. The University of Alaska is ordered to post a notice of this decision and order at all work sites where members of the bargaining unit affected by the decision and order are employed or, alternatively, serve each employee affected personally. 8 AAC 97.460.

ALASKA LABOR RELATIONS AGENCY

Alfred L. Tamagni Sr., Board Chair

Karen J. Mahurin, Board Member

DISSENT

I agree that adjuncts are public employees.

However, I disagree with the decision and order. When asked, the adjunct representing the United Academics described a very narrow community of interest among adjuncts who regularly taught core courses during the academic year. I do not find that all proposed employees share this community of interest. Neither do I think that the Agency should create a unit. A community of interest should not be based solely on what a group does not share with other existing units such as no health benefits, no retirement, no tenure, etc. Among the proposed unit there are large differences between employees since hours of teaching vary, teaching duties vary, pay methods vary, wages vary, office hours vary, degrees held vary, number of courses taught vary, work sites vary, frequency of teaching varies, and the types of courses taught cross existing bargaining unit lines. There is no history of bargaining for adjuncts, but this fact alone should not prevent organization of adjuncts. There are three distinct groups of employees: regulars, repeaters, and sporadic. The desires expressed in the hearing reflected the desires of only the regulars. This is the smallest of the three groups. There was no testimony from the largest groups of repeaters and sporadic adjuncts. The initial showing of interest does not in and of itself show the desires these employees and no evidence was presented at the hearing on the desires of the largest groups. The desires therefore can not be fairly determined.

Although a spring vote disenfranchises summer adjuncts, I agree that the vote should comply with existing regulations.

Robert A. Doyle, 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 UNITED ACADEMIC ADJUNCTS-AAUP/AFT/APEA, AFL-CIO, vs. UNIVERSITY OF ALASKA, CASE NO. 97-692-RC, dated and filed in the office of the Alaska Labor Relations Agency in Anchorage, Alaska, this 15th day of April, 1997.

Victoria D. Scates

Administrative Clerk III

This is to certify that on the 15th day of April, 1997, a true and correct copy of the foregoing was mailed, postage prepaid and sent by facsimile to

James Gasper, UAA-AAUP/AFT/APEA, AFL-CIO

Parry Grover, University of Alaska

Signature

¹Chancellor Edward Lee Gorsuch described a bipartite workload as 80 percent teaching and 20 percent service and a tripartite workload as 60 percent teaching, 20 percent service and 20 percent research.

²The definition appeared in 2 AAC 10.220(b)(2). In 1993 it was moved to 8 AAC 97.990(2), and in 1995 it was repealed.

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