CASE NOS. 95-422-UC; 95-423-UC; and 95-424-UC (Consol.)

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 NOS. 95-422-UC; 95-423-UC; and 95-424-UC (Consol.)

DECISION AND ORDER NO. 219

Digest: The Agency's regulations requiring the separation of supervisory and nonsupervisory personnel at the State level in 8 AAC 97.090(a)(1) and defining "supervisory employee" in 8 AAC 97.990(a)(5) are valid. The positions of statewide environmental coordinator, technical engineer II/architect II, and natural resource manager I are appropriately in the supervisory unit rather than the general government unit.

DECISION

Statement of the Case

The case is before the Agency on remand by the superior court. In its order, the court stated,

On remand the Alaska Labor Relations Agency shall permit appellant Alaska State Employees Association to submit evidence and arguments regarding application of the Public Employment Relations Act (AS 23.40) and the regulations promulgated under that Act to the facts in this case. The Alaska Labor Relations Agency shall enter findings of fact and conclusions of law regarding whether such regulations are consistent with the statute and properly applied to the facts in this case.

No. 3AN-95-9083 CI (Mar. 25, 1996). This order followed an appeal of three Agency decisions involving the question whether a State employee belonged in the general government unit, represented by the Alaska State Employees Association/AFSCME Local 52, AFL-CIO (ASEA) or the supervisory unit, represented by the Alaska Public Employees Association/AFT, AFL-CIO (APEA). The Agency had ordered the positions to the supervisory bargaining unit. State of Alaska v. Alaska State Employees Ass'n/AFSCME Local 52, AFL-CIO, Decision & Order No. 194, at 6 (Sept. 26, 1995); State of Alaska v. Alaska State Employees Ass'n/AFSCME Local 52, AFL-CIO, Decision & Order No. 196, at 6 (Oct. 19, 1995); State of Alaska v. Alaska State Employees Ass'n/AFSCME Local 52, AFL-CIO, Decision & Order No. 198, at 6 (Nov. 15, 1995).

APEA filed a petition for review of the remand order, which was denied by the Alaska Supreme Court on May 9, 1996. A prehearing conference was held on June 17, 1996.

Several requests for subpoenas and motions were filed with the Agency. ASEA requested prehearing subpoenas on June 14, 1996. Hearing officer Jean Ward denied the request on June 14, 1996, and advised ASEA that a motion to compel discovery under AS 44.62.440(a) would be considered if ASEA could not obtain the information informally. On July 18, 1996, ASEA renewed its request for prehearing subpoenas, calling it a Request For Expedited Pre-Hearing Subpoena. The hearing officer advised that ASEA's request for expedited prehearing subpoenas would be treated as a motion under AS 44.62.440(a) to compel discovery, and an order permitting the parties to initiate and engage in discovery was issued on August 9, 1996. The State appealed this order to the board panel on August 12, 1996. ASEA opposed the State's appeal on August 22, 1996. The appeal was denied on August 23, 1996.

On July 30, 1996, ASEA moved the Agency to declare two regulations invalid -- 8 AAC 97.090(a)(1) and 8 AAC 97.990(a)(5). On August 6, 1996, both the State and APEA opposed the motion.

APEA filed a motion to consolidate the cases on August 7, 1996. The State filed notice of its concurrence on August 8, 1996, and ASEA opposed the motion on August 9, 1996. APEA's motion to consolidate was granted on August 12, 1996.

The case was heard on September 4 and 5, 1996, with board members James W. Elliott, Alfred L. Tamagni, Sr., and Raymond Smith participating in person.

The record closed on September 12, 1996, with the receipt of exhibits numbered 27 and 28.

On September 24, 1996, the parties were advised that member James W. Elliott had recused himself.

Panel: Chair Alfred L. Tamagni, Sr., and board member Raymond Smith.

Appearances: Art Chance, labor relations specialist, for petitioner State of Alaska; Don Clocksin, attorney, for respondent Alaska State Employees Association/AFSCME Local 52, AFL-CIO; and James A. Gasper, Jermain, Dunnagan & Owens, P.C., for intervenor Alaska Public Employees Association/AFT, AFL-CIO.

Procedure in this case is governed by 8 AAC 97.330, 8 AAC 97.350 -- 8 AAC 97.480. Hearing officer Jean Ward presided.

Issues

1. Who has the burden of proof?

2. May Art Chance represent the State?

3. Was a collective bargaining agreement in effect, and if so, does the agreement prohibit the Agency from addressing unit clarification?

4. May the Agency declare a regulation invalid in the adjudication of a case?

5. Is 8 AAC 97.090(a)(1) valid?

6. Is 8 AAC 97.990(a)(5) valid?

7. Does the mandatory separation of supervisory personnel from nonsupervisory personnel at the State level only, and not for school, railroad, or political subdivision employees, violate Executive Order No. 77?

8. Does the ASEA/State agreement dictate the version of the regulation that applies?

9. Under AS 23.40.090, are the positions occupied by Nathan Johnson, Eric Johnson, and Kellie Litzen appropriately in the supervisory unit or the general government unit?

10. Under 8 AAC 97.990(a)(5), what does "authority to act or to effectively recommend action in the interest of the public employer" mean?

11. Do the positions at issue have "authority to act or to effectively recommend action in the interest of the public employer" in a manner demonstrating the exercise of independent judgment in at least one of the supervisory functions in 8 AAC 97.990(a)(5)?

12. Can a person who only supervises one or two employees be a supervisor under 8 AAC 97.990(a)(5)?

Summary of the Evidence

A. Exhibits.

Petitioner State of Alaska offered the following exhibits, which were admitted into the record:

10. Department of Transportation and Public Facilities organizational chart, (July 1, 1994)(other parts of exhibit were withdrawn);

16. Supervisory responsibilities questionnaire for PCN 25-0235 (E. Johnson) (Jan. 20, 1995);

24. Extracts, State and APEA/AFT, AFL-CIO, collective bargaining agreement (Jan. 1, 1990 -- Dec. 31, 1992)(cover page; letter of agreement extending terms through June 30, 1995);

26. Extract, State and APEA/AFT, AFL-CIO, collective bargaining agreement (July 1, 1996 -- July 1, 1999) (pages 1 - 4 and cover page);

27. Dianne Corso, memorandum (June 5, 1996); and

28. Computer print-out, level of authority for various State employees (8/29/96).

Petitioner State of Alaska offered the following exhibits that were not admitted into the record:

11. - 15. Withdrawn;

17. - 23. Withdrawn; and

25. Withdrawn.

Respondent ASEA offered the following exhibits that were admitted into the record:

A. Class specification - division director (July 9, 1979);

B. Training records, N. Johnson (July 30, 1996);

C. Fair Labor Standards Act Overtime Exemption Work Sheet, PCN 25-0180, N. Johnson (Mar. 14, 1995);

D. Staff meeting notes - Environmental, N. Johnson (various dates);

E. Floor plans, DOT headquarters;

F. State of Alaska Personnel Action forms pertaining to Gregory E. Otto (N. Johnson)(Aug. 4, 1995);

G. B. Reaume and J. Rider various memoranda (various dates);

H. Department of Transportation and Public Facilities Policy, (delegation of authority)(Aug. 22, 1990);

I. Training records (E. Johnson) (July 30, 1996) 2 pages;

J. Fair Labor Standards Act Overtime Exemption Work Sheet, PCN 25-0235 (E. Johnson) (Mar. 1, 1996);

K. State of Alaska Personnel Action forms pertaining to R. Gartin, H. Jerue, V. Judd (E. Johnson)(various dates);

L. T. Barter notes (July 24, 1996);

M. Office assignment for Headquarters Materials (July 24, 1996);

N. Headquarters Materials Engineering and Operations, organization chart (June 11, 1996);

O. Headquarters Statewide Materials, organization chart (Anchorage) (June 1996);

P. Eric G. Johnson biography, SOA, DOT&PF Web home page;

Q. What's Been Happening at Headquarters Materials (Jan. 3, 1996);

R. H. Noah, memorandum to N. Usera (June 30, 1994);

S. Floor plan, DNR;

T. State of Alaska Personnel Forms pertaining to B. Kuby, C. Compton, A. Monsen (K. Litzen)(various dates);

U. Supervisor's Policies & Procedures Manual, Alaska Department of Natural Resources (excerpts)(April 16, 1996);

V. Personnel Policies and Procedures Manual(Sept. 4, 1996);

W. State of Alaska Personnel Rules (excerpts)(Nov. 1, 1994);

X. Excerpts, State of Alaska Administrative Manual, Vol. II (July 1985);

Y. Progressive Discipline - A Supervisor's Guide (excerpts);

AB. Department of Transportation and Public Facilities, organizational chart(July 1, 1994);

AC. Position Description Questionnaire(PDQ) PCN 25-0176, L. Rasmussen (Dec. 12, 1993);

AD. State of Alaska Class Specification - Engineer IV (June 1, 1994);

AE. PDQ - PCN 25-0192, T. Barter (July 25, 1994);

AF. PDQ - PCN 10-1315, G. Prokosch (Feb. 16, 1995);

AG. Affidavit of Nathan Johnson (Dec. 28, 1995);

AH. David R. Eberle, letter (Aug. 1, 1996) (admitted over objection);

AI. Memorandum re: termination (Aug. 19, 1996) (admitted over objection);

AJ. Extracts, Discipline: Progressive & Constructive, Participant Workbook (including arbitration decision); and

AK. Division of Mining and Water Management, organizational chart (June 25, 1996) (admitted over objection);

Intervenor APEA offered the following exhibit that was admitted into the record:

53. In re ASEA/AFSCME Local 52, AFL-CIO, and State of Alaska, Opinion and Award (Mar. 26, 1996) (Dorsey, Arb.)(supervisor definition).

Intervenor APEA offered the following exhibits that were not admitted into the record:

51. - 52. Withdrawn;

Petitioner, respondent, and intervenor offered the following joint exhibits that were admitted into the record:

Z. Extracts, ASEA/AFSCME Local 52, AFL-CIO and State of Alaska collective bargaining agreement (cover sheet, pages 2-3, 52-53, & 117) (1990 - 1993); and

AA. Extracts, ASEA/AFSCME Local 52, AFL-CIO and State of Alaska collective bargaining agreement (pages 1, 28-32, & 63)(July 1, 1996 -- June 30, 1999).

B. Testimony.

The following witnesses testified: DOT/PF Statewide Environmental Coordinator Nathan P. Johnson; DOT/PF Acting Director, Division of Engineering and Operations, Loren L. Rasmussen; Personnel Manager Mike McMullen; Director, Division of Personnel, Beverly Reaume; Natural Resource Manager I Dany Allison; Technical Engineer II/ Engineer of Tests Eric G. Johnson; and Natural Resource Manager I Kellie M. Litzen.

C. The Agency case files in 95-422-UC, 95-423-UC, and 95-424-UC including the records of the hearings conducted in those cases on August 17, 18, and 28, 1995. 8 AAC 97.410.

Findings of Fact

The panel, by a preponderance of the evidence, supplements the findings of facts in decision and orders numbered 194, 196, and 198 as follows:

1. ASEA and the State were parties to a collective bargaining agreement that was in effect from 1990 to 1992/1993. Exh. A, at 3, N. Johnson 1; Exh. 7, at 1, E. Johnson 1; Exh. 101, at 3, Litzen 1.

2. Representatives of the State and ASEA signed letter of agreement 95-GG-030, which extended the terms of the expired collective bargaining agreement, on June 28, 1995, and June 27, 1995, respectively. Exh. A, at 5, N. Johnson 1; Exh. 7, at 3, E. Johnson 1; Exh. 101, at 5, Litzen 1.

3. The agreement to extend the collective bargaining agreement was effective July 1, 1995. Exh. A, at 5, N. Johnson 1; Exh. 7, at 3, E. Johnson 1; Exh. 101, at 5, Litzen 1.

4. There was no collective bargaining agreement in effect between ASEA and the State on June 30, 1995, the date that the three unit clarification petitions were filed.

5. The ASEA/State collective bargaining agreement does not define the bargaining unit on a position by position basis. Exh. A, at 2, N. Johnson 1; Exh. 6, at 2, E. Johnson 1; Exh. 101, at 2, Litzen 1.

6. The APEA/State collective bargaining agreement does not establish which positions are supervisory. Exh. 102, at 2, N. Johnson 1; Exh. 8, at 2, E. Johnson 1; Exh. 102, at 2, Litzen 1.

7. Both the ASEA/State and APEA/State agreements contain a procedure whereby the Agency decides disputed unit placement issues. Exh. A at 2, N. Johnson 1; Exh. 6, at 3, E. Johnson 1; Exh. 101, at 2, Litzen 1; Exh. 102, at 4, N. Johnson 1; Exh. 8, at 4, E. Johnson 1; Exh. 102, at 4, Litzen 1.

8. On November 28, 1995, ASEA filed a grievance, claiming that the parties' agreement prohibited the State from relying upon any Agency regulation or decision addressing supervisory status that the Agency issued after the date of the State and ASEA's first agreement. Exh. 53, at 1-2, 6-7.

9. The grievance was arbitrated and the arbitrator ruled against ASEA. The arbitrator found that the agreement does not require the State to apply the definition of "supervisory employee" in effect prior to May 15, 1990, or the policies in decision and orders issued prior to that date, when initially determining bargaining unit placements. Exh. 53, at 14-18.

10. Nathan Johnson, Eric Johnson, and Kellie Litzen share a community of interest with the supervisory unit due to their supervisory responsibilities, including employing, disciplining, and adjudicating grievances. Exhs. 1 & 3, N. Johnson 1; Exhs. 1 & 3, E. Johnson 1; Exhs. 1 & 3, Litzen 1.

11. The two Johnsons and Litzen are ineligible for overtime. Exh. 1, at 1, N. Johnson 1; Exh. 1, at 1, E. Johnson 1; Exh. 1, at 1, Litzen 1; Exhs. C & J.

12. The State placed the two Johnsons and Litzen in the supervisory unit after the Agency issued decisions in the first hearings. Since that time the supervisory unit agreement governed the wages paid and hours worked.

13. These three employees share working conditions with members of both the supervisory and general government units. However, their responsibility to perform the supervisory functions in 8 AAC 97.990(a)(5) and other supervisory duties, such as training, evaluating, assigning priorities, and approving leave, distinguish their working conditions from nonsupervisory employees. Exhs. 1 & 3, N. Johnson 1; Exhs. 1 & 3, E. Johnson 1; Exhs. 1 & 3, Litzen 1.

14. Historically the positions occupied by the two Johnsons and Litzen resided in the general government unit until moved following the Agency's decision and order numbers 194, 196, and 198.

15. N. Johnson prefers to be in the supervisory unit.

16. No evidence was presented about E. Johnson's unit preference.

17. Litzen does not have a preference regarding bargaining units. She testified that she is not a union person.

18. N. Johnson has authority to employ, discipline, and adjudicate grievances, Exhs. 1 & 3, N. Johnson 1.

19. N. Johnson has not yet had an opportunity to employ, discipline, or adjudicate grievances.

20. E. Johnson has authority to employ, discipline, and adjudicate grievances. E. Johnson would rate his authority to perform the first six supervisory duties on the supervisory responsibilities questionnaire at the highest level if he were to fill the questionnaire out today. Exhs. 1 & 3, E. Johnson 1.

21. E. Johnson has not had any additional opportunities to employ, discipline, or adjudicate grievances since he hired Gartin in 1994.

22. Litzen has authority to employ, discipline, and adjudicate grievances. See PDQ and supervisory responsibilities questionnaire. Exhs. 1 & 3, Litzen 1.

23. Due to budget cuts, Litzen's unit is smaller than it was at the time of the first hearing. Two positions have been eliminated. One of those positions was vacated by an employee who retired.

24. The overall ratio of supervisors to general government workers is approximately one to eight.

Discussion

In considering the meaning of the regulation that defines supervisory employee, 8 AAC 97.990(a)(5), it is useful to consider the history of the general government and supervisory units and the supervisory employee regulation.

A. History of separation of State supervisors from other employees in bargaining.

The history of the supervisory employee regulation shows that both the State Labor Relations Agency (SLRA) and this Agency have made numerous attempts to clarify who is a supervisor at the State level. The first SLRA decisions in 1973 show that supervisory status was an important factor distinguishing State employees and SLRA regulations prohibited supervisory State employees from being in units with nonsupervisory employees. Concerning Petitions Number 1-72, 2-72, 3-72, 4-72, 5-72, and Relevant Interventions and Objections, SLRA Order & Decision No. 1, at 4-5, 9-10, 12-15, & 20 (Feb. 2, 1973). Other groups excluded from the general government unit were partially exempt employees defined by AS 39.25.120; confidential employees defined by 2 AAC 10.220(2); ferry terminal managers I and II and ferry terminal assistants, unless they voted to be a part of the general government unit; and certain building and construction trades classifications. Id., at 12-14.

The SLRA did not determine the specific positions that belonged in the general government unit. Rather than decide the employees that should be excluded from the general government unit as supervisors under 2 AAC 10.220(4), the SLRA accepted stipulations from the State and APEA dividing positions into the supervisory or nonsupervisory groups. The SLRA decided the appropriate unit for only the disputed positions. Id., at 9-15.

The SLRA found the supervisory unit appropriate in Order and Decision No. 8, on January 17, 1974. That unit consists of "all supervisory employees in the classified service of the Executive Branch of the State of Alaska not including partially exempt employees." Concerning the Petition for Collective Bargaining Representative of Supervisory Employees of the State, SLRA Order & Decision No. 8, at 1 (Jan. 17, 1974).

Both the general government and supervisory units were represented by APEA until September of 1988, when ASEA became the certified bargaining representative for the general government unit. Alaska State Employees Ass'n v. State of Alaska, SLRA Order & Decision No. 117, at 2 (April 20, 1989); Pertaining [to] Unit Allocation of Individuals, SLRA Order & Decision No. 26, at 2 & 4 (July 23, 1976).

The SLRA interpreted the regulation that defined supervisory employee in orders and decisions issued from 1975 through 1990. 2 AAC 10.220(b)(3) defined "supervisory employee" to mean,

an individual having substantial responsibility on behalf of the public employer regularly to participate in the performance of all or most of the following functions: employ, promote, transfer, suspend, discharge or adjudicate grievances of other employees, if in connection with the foregoing, the exercise of such responsibility is not of a merely routine nature but requires the exercise of independent judgment.

In 1975, the SLRA decided that "all or most" meant four of the six supervisory functions in 2 AAC 10.220(b)(3) and that unit placement decisions would be made individually, on the basis of the actual job duties performed, instead of the description of job duties in the class specification. Pertaining to Petitions for Clarification of Supervisory Status, SLRA Order & Decision No. 15 (Feb. 3, 1975). The SLRA ordered the State to make initial determinations of unit placement based on the definition of supervisory employee in the regulation, SLRA Orders and Decisions, and the collective bargaining agreements between the State and employee organizations. Pertaining to Clarification of Order and Decision No. 15, SLRA Order & Decision No. 15-A, at 3 (April 3, 1975). The State developed a questionnaire to determine whether positions belonged in the supervisory or general government unit. The State's decision on unit placement could be appealed to the SLRA. Id., at 2-4.

In 1976, the SLRA refined its interpretation of the supervisory employee regulation in several significant ways: (1) professional employees were not supervisors unless they supervised employees; (2) employees who allocated workloads, trained new employees, and directed work were lead employees because they did not perform the supervisory functions in 2 AAC 10.220(b)(3); (3) employees who had substantial responsibility but limited opportunity to participate in a majority of the six supervisory functions were not supervisors if they spent a substantial percentage of time performing nonsupervisory duties, instead of guiding, training, allocating, and directing work done by others; and (4) employees who had substantial responsibility but limited opportunity to participate in a majority of the six supervisory functions, and who spent the great majority of time supervising work instead of performing nonsupervisory duties, were supervisors if the employees' authority and the amount of time spent supervising work was clearly established. Pertaining [to] Unit Allocation of Individuals, SLRA Order & Decision No. 26, at 5-6.

In 1981, the SLRA addressed the effect of restrictions on the delegation of supervisory functions. At issue was a Department of Transportation policy that prohibited delegation of authority below the division director level to dismiss, suspend, demote, layoff, or transfer employees and that designated the Commissioner as the appointing authority for range 20 and above positions. The SLRA determined that the policy did not preclude two airport safety officers I from being supervisors under the regulation:

By this Order and Decision we do not disregard the policies and procedures set forth by the State of Alaska. However, we do realize that the centralization of authority by a policy and procedure directive does not preclude subordinates from having substantial responsibility to regularly participate in performance of a supervisory functions.

Re: Unit Clarification 80-15, SLRA Order & Decision No. 64, at 2-4 (April 20, 1981).

In 1989, the SLRA issued three decisions pertaining to the supervisory employee regulation. In Order and Decision No. 117, the SLRA denied ASEA's objection to the 1981 version of the PDQ form that the State used to determine whether employees are supervisory employees and approved the State's continued use of the PDQ to determine employees' bargaining unit placement. For the first time, the SLRA applied to all supervisors a test requiring that to be a supervisor the employee must spend the majority of his or her time performing supervisory work. This test was developed in Order and Decision No. 26 for those supervisors who had limited opportunity to perform the majority of the six supervisory functions in the regulations. Alaska State Employees Ass'n v. State of Alaska, SLRA Order and Decision No. 117, at 4; Pertaining [to] Unit Allocation of Individuals, SLRA Order & Decision No. 26, at 6.

In Order and Decision No. 121, the SLRA found that supervisory employees must supervise more than two subordinates. Public Safety Employees Ass'n v. Alaska State Employees Ass'n, SLRA Order & Decision No. 121, at 3-4 (Aug. 28, 1989).

In Order and Decision No. 123, the SLRA summarized earlier interpretations of the supervisory employee regulation, stating in part that Order and Decision Nos. 15, 26, and 63 required that the supervisor must supervise at least two subordinates and that merely recommending in a majority of the six supervisory functions in the regulation was insufficient to establish independent authority. Alaska State Employees Ass'n v. Alaska Public Employees Ass'n, SLRA Order & Decision No. 123, at 6-7 (Aug. 28, 1989). The SLRA also interpreted the regulation as follows: (1) participation as a coequal on a committee to appoint employees was insufficient to establish independent authority to appoint; (2) independent authority to take an action as a supervisor was established if prior permission was not required; (3) the authority to move a flexible staff position to a higher pay range constituted authority to promote; (4) transfers to another job location or to substantially different job duties were just as significant as transfers between position control numbers; (5) authority to suspend was not determined by the duration of the suspension; (6) an employee could possess authority to settle grievances despite a contract bar preventing its exercise; (7) the term grievance meant an actual first level grievance under a contract; and (8) employees must spend over fifty percent of the time performing supervisory responsibilities to be supervisors under the regulation. Id., at 8-10.

The Alaska Labor Relations Agency inherited the supervisory regulation when the Agency was established on July 1, 1990. The Agency first addressed unit clarification cases involving the supervisory issue in Decision and Order No. 132 on June 13, 1991. The Agency applied the following SLRA guidelines: bargaining unit transfers would be reviewed on a case by case basis instead of relying on class specifications, the supervisor must supervise at least two employees, four of the six supervisory functions in 2 AAC 10.220(b)(3) must be demonstrated, an employee must spend "most" of his day performing supervisory tasks, and the employee must demonstrate independent authority and not merely recommend action in a majority of the six supervisory functions in the regulation to be considered a supervisor under 2 AAC 10.220(b)(3). State of Alaska v. Alaska State Employees Ass'n, Decision & Order No. 132 (June 13, 1991).

The next supervisory dispute to result in a decision and order involved whether a position belonged in the supervisory unit or the labor, trades, and crafts unit. The Agency examined the language defining "supervisory employee" in 2 AAC 10.220(b)(3) and compared it with the SLRA interpretations developed since the Public Employment Relations Act (PERA) became effective in 1972.

The Agency departed from SLRA precedent and found that (1) "most" of the six supervisory functions in the regulation meant five, instead of four, of the functions; (2) independent judgment meant both the exercise of discretion and the authority to act on that discretion, rather than simply authority to act; (3) a collective bargaining agreement that restricts promotion to only the most senior qualified employee may preclude the exercise of independent judgment in the promote function; (4) if an employee had no opportunity to exercise discretion in five of the six supervisory functions in 2 AAC 10.220(b)(3) the employee's other supervisory duties, such as reviewing, training, evaluating, directing, and assigning the work of subordinates, would be examined for evidence of discretion; (5) time tests, which had become known as "most of the time" and "over fifty percent of the time" were rejected; and (6) "regular participation" in the supervisory functions in 2 AAC 10.220(b)(3) meant acting in a manner demonstrating independent judgment and authority each time the opportunity arose. State of Alaska v. Public Employees Local 71, Decision & Order No. 144, at 3-18 (Oct. 1, 1992).

The intervenor, APEA, appealed Decision & Order No. 144. While the appeal was pending, this Agency adopted regulations that were effective July 22, 1993. 8 AAC 97.990(a)(5) redefined "supervisory employee" to mean

an individual, regardless of job description or title, who has authority to act or to recommend action in the interest of the public employer related to employing, promoting, transferring, suspending, discharging, laying off, recalling, assigning, rewarding, disciplining, or directing employees or adjusting the grievances of other employees, if the exercise of that authority is not merely routine but requires the exercise of independent judgment.

This definition closely tracks the definition of supervisory employee in the National Labor Relations Act (NLRA). 29 U.S.C. § 152(11) (West 1996). Relying on the NLRA definition would make available to the Agency a large body of case law construing the term "supervisor." See 8 AAC 97.450(b).

The superior court affirmed the Agency's decision in Decision and Order No. 144. Alaska Public Employees Ass'n v. Alaska Labor Relations Agency, No. 1JU-92-2105-CI (Feb. 15, 1994). However, it noted that it was "perplexed at why, after Order & Decision No. 144, the Alaska Labor Relations Agency would adopt a broad definition of supervisory employee which appears, with its 'or' language, to only require a supervisory employee to meet one of the categorical requirements." Id., at 13 n.8.

Following this decision, the Agency revised the "supervisory employee" regulation. See discussion infra, subsection C.6. This is the current definition that ASEA challenges in this case.

The history of the supervisory employee regulation demonstrates the longstanding difficulties that the unions, State, and the two labor relations agencies have experienced in determining who is a supervisor. The National Labor Relations Act addressed the problems inherent in mixing supervisors in units with nonsupervisors by excluding supervisors from the definition of "employee" subject to the provisions of the NLRA. 29 U.S.C. § 152(3)(West 1966). In contrast, PERA excludes from bargaining only "elected or appointed officials or superintendents of schools." AS 23.40.250(6). Because supervisors have collective bargaining rights under PERA, the question is what is an appropriate bargaining unit for them under AS 23.40.090.

B. Should supervisors be in a different bargaining unit from nonsupervisors?

When the SLRA determined the appropriateness of the first State bargaining units under PERA, it considered the prohibition in 2 AAC 10.110(1) against combining supervisory and nonsupervisory employees. Concerning Petitions Number 1-72, 2-72, 3-72, 4-72, 5-72, and Relevant Interventions and Objections, SLRA Order & Decision No. 1, at 4-5, 9-10, 12-15, & 20. The current regulation that requires the separation of State supervisors from nonsupervisory employees is 8 AAC 97.090(a)(1). See discussion infra, subsection C.5.

In Order and Decision No. 8, the SLRA found that "There is a substantial community of interest among supervisory employees within the classified service of the Executive Branch of the State of Alaska." Concerning the Petition for Collective Bargaining Representative of Supervisory Employees of the State, SLRA Order & Decision No. 8, at 2. The SLRA did not state its rationale.

Although the SLRA did not explain its rationale, one reason is obvious: community of interest. Community of interest is one of several factors in AS 23.40.090 used to determine the appropriateness of bargaining units. The community of interest setting supervisors apart from nonsupervisory employees derives from the common duties of supervisors, managing people and insuring that work gets done.

Supervisors may hire, transfer, lay off, recall, discharge, suspend, demote, issue verbal and written warnings, evaluate performance, enforce the employer's policies and procedures, and resolve grievances. Supervisors or leadpersons who insure that the work gets done may plan, assign, review, correct, and track work assignments; direct, brief, and train employees; schedule leave; decide what type of equipment to buy; and assign employees to operate specific pieces of equipment.

Some of these duties, such as hiring, transferring, laying off, recalling, suspending, discharging, demoting, issuing written warnings, and responding to grievances, may bring supervisors into conflicts with the employees they supervise. These duties fall into three main categories: employing, disciplining, and adjudicating grievances. Supervisors who are responsible to carry out management's employment policies and procedures can experience significant conflicts of interest when they are placed in the same bargaining unit as the employees that they supervise. Munson v. State, Decision & Order No. 206, at 16, 21-29 (Sept. 20, 1996). This potential conflict justifies segregating supervisors who participate in these duties from nonsupervisory employees.

The most recent manifestation of this principle divides employees who have authority to perform these duties from those who do not have this authority. Under 8 AAC 97.990(a)(5), supervisors must have authority to act or effectively recommend action in at least one of the three supervisory functions in the regulation-- employing, discipline, or grievance adjudication-- and exercise independent judgment in carrying out those actions.

In the first three decisions involving 8 AAC 97.990(a)(5), which are the subject of this remand, we have found that,

[T]o be a supervisor under 8 AAC 97.990(a)(5), two standards must be met. First, the employer must have conferred on an employee the authority to act or effectively recommend action in any one of the three following supervisory functions: employing, discipline, or grievance adjudication. Second, the employee must exercise independent judgment in performing the function when the opportunity arises.

State of Alaska v. Alaska State Employees Ass'n/AFSCME Local 52, AFL-CIO, Decision & Order No. 194, at 6 (Sept. 26, 1995); State of Alaska v. Alaska State Employees Ass'n/AFSCME Local 52, AFL-CIO, Decision & Order No. 196, at 6 (Oct. 19, 1995); State of Alaska v. Alaska State Employees Ass'n/AFSCME Local 52, AFL-CIO, Decision & Order No. 198, at 6 (Nov. 15, 1995).

The current regulation is an attempt at providing a clear test to make unit determinations more predictable and enable the parties to resolve more unit clarification issues themselves. As budgets fluctuate, government reorganizes and changes employees' duties. The regulation is intended to increase the parties' ability to predict the outcome to allow the parties a straightforward method to initially determine unit placement as changes in supervisory duties occur.

The community of interest that State supervisors share and the potential conflict of interest with nonsupervisory employees justify a separate unit for supervisors under AS 23.40.090. See discussion infra, subsections C.5.b. & c. and C.6.a. & b.

C. Issues.

1. Who has the burden of proof?

ASEA raised the burden of proof issue in its notice of factual and legal issues filed on June 14, 1996. 8 AAC 97.350(f) establishes the burden of proof in unit clarification cases. Under this regulation, the State as petitioner has the burden to prove each element of its claims by a preponderance of the evidence.

2. May Art Chance represent the State?

ASEA indicated that it intended to call Chance as a witness and raised the issue whether he could represent the State in its June 14, 1996, list of legal issues. Under the hearing procedures in 8 AAC 97.355, an individual may not be a witness and a representative at the same hearing, and a party who names an opposing representative as a witness must make a showing of necessity. If the Agency determines that necessity exists, the opposing representative must stop serving as a representative.

At the prehearing conference held on June 17, 1996, the hearing officer denied ASEA's request to remove Chance as the State's representative because ASEA did not make a showing of necessity under 8 AAC 97.355(c). ASEA was advised that it could renew its request under 8 AAC 97.355 no later than July 26, 1996. The deadline was established so that the State would not be prejudiced in its ability to present its case. Prehearing Order and Notice of Hearing, at 3 (June 24, 1996). ASEA did not renew its request and this issue is considered waived.

3. Was a collective bargaining agreement in effect, and if so, does the agreement prohibit the Agency from addressing unit clarification?

ASEA maintains that an agreement was in effect at the time the three unit clarification petitions were filed and the agreement therefore bars the petitions. The Public Employment Relations Act bars representation elections during the life of a collective bargaining agreement except during a 90-day period preceding the agreement's expiration date. AS 23.40.100(e). The section, however, includes a proviso; the agreement may not bar an election for more than three years. AS 23.40.100(e) provides that,

An election may not be directed by the labor relations agency in a bargaining unit in which there is in force a valid collective bargaining agreement, except during a 90-day period preceding the expiration date. However, a collective bargaining agreement may not bar an election upon petition of persons in the bargaining unit but not parties to the agreement if more than three years have elapsed since the execution of the agreement or the last timely renewal, whichever was later.

This Agency adopted 8 AAC 97.060(e), implementing the contract bar in AS 23.40.100(e). 8 AAC 97.060(e) provides

The labor relations agency will dismiss a petition if

(1) the petitioner does not correct an insufficiency within six days after the agency provides notice that the required showing of interest is insufficient;

(2) the proposed bargaining unit appears to be an inappropriate unit for collective bargaining purposes;

(3) a collective bargaining agreement is in effect unless the petition is filed between 150 calendar days and 90 calendar days before the expiration date of the agreement; or

(4) an election has been held in the bargaining unit or subdivision of the bargaining unit within one year preceding the date of filing of the petition.

Whether the three unit clarification petitions were timely filed depends on whether an agreement is in effect. The State and ASEA bargaining agreement for general government workers was in effect from 1990 to 1992 or 1993, depending on the employees' strike classification. Exh. A, N. Johnson 1; Exh. 6, E. Johnson 1; Exh. 101, Litzen 1. The State and ASEA extended the terms of the expired agreement, effective July 1, 1995. Exh. A, N. Johnson 1; Exh. 7, E. Johnson 1; Exh. 101, Litzen 1. The unit clarification petitions were filed on June 30, 1995. Because there was no agreement in effect on the date that the petitions were filed, there is no contract bar.

ASEA further argues that reaching agreement alone should bar the petitions regardless whether the agreement is in effect. This theory is that, by reaching agreement on the unit, a party should not be able to disrupt the agreement by changing the unit while the agreement is in effect. The doctrine appears in Edison Sault Elec. Co., 313 N.L.R.B. No. 129, 145 L.R.R.M.(BNA) 1209 (1994):

The Board's rule is based on the rationale that to entertain a petition for unit clarification during the midterm of a contract which clearly defines the bargaining unit would disrupt the parties' collective bargaining relationship. In other words, the Board has held that to permit clarification during the course of a contract would mean that one of the parties would be able to effect a change in the composition of the bargaining unit during the contract term after it agreed to the unit definition.

In Edison Sault, the doctrine was applied to an employer that had negotiated specific positions into a unit, as well as the wages to be paid the positions, and then filed a unit clarification petition two months after the contract was ratified by the employees, but before it had signed the contract. The policy in Edison Sault was to avoid disrupting the contract and the bargaining unit, which had been settled in the contract.

The problem with applying this doctrine in this case is the contract between ASEA and the State does not define the unit. There is no position by position description. Exh. A, at 2, N. Johnson 1; Exh. 6, at 2, E. Johnson 1; Exh. 101, at 2, Litzen 1. The boundary between the supervisory and the general government unit is elastic. Position classification does not disclose supervisory status. The agreement between APEA and the State does not establish which positions are supervisory. Exh. 102, at 2 & 4, N. Johnson 1; Exh. 8, at 2 & 4, E. Johnson 1; Exh. 102, at 2 & 4, Litzen 1. Instead, both agreements reflect the parties' recognition that there will be disputes and establish a procedure for the Agency to decide them. Exh. A at 2, N. Johnson 1; Exh. 6, at 3, E. Johnson 1; Exh. 101, at 2, Litzen 1; Exh. 102, at 4, N. Johnson 1; Exh. 8, at 4, E. Johnson 1; Exh. 102, at 4, Litzen 1. The language in the general government unit agreement and the history of the parties' litigation in this area makes it impossible to conclude that the parties intended to freeze the bargaining unit at the status quo.

The policies applied in Edison Sault do not fit the facts of this case. Thus, the parties' agreement does not prohibit Agency consideration of these petitions.

4. May the Agency declare a regulation invalid in the adjudication of a case?

ASEA has asked the Agency to declare two of its regulations, 8 AAC 97.090(a)(1) and 8 AAC 97.990(a)(5), invalid. ASEA also urges the Agency to decide the supervisory issues in these cases based on the definition of supervisory employee in 2 AAC 10.220(b)(3) and the SLRA interpretation of that regulation in Order & Decision No. 123. ASEA advocates returning to a test requiring an employee to spend over fifty percent of the time performing supervisory responsibilities which was applied in SLRA Order & Decision No. 123.

The Administrative Procedure Act (APA) does not permit the Agency to replace 8 AAC 97.990(a)(5) with the language formerly contained in 2 AAC 10.220(b)(3) or repeal 8 AAC 97.090(a)(1) in the adjudication of a case. The Agency must adopt and repeal regulations under the provisions of the APA. AS 44.62.040, AS 44.62.060, AS 44.62.100, & AS 44.62.175. The court, however, in its remand order requires this Agency to examine whether the regulations are consistent with the statute, among other things. We will therefore examine these two regulations.

5. Is 8 AAC 97.090 valid?

On July 30, 1996, ASEA moved to declare 8 AAC 97.090(a)(1) invalid. This regulation requires the separation of State supervisory personnel from State nonsupervisory personnel. 8 AAC 97.090 states in part, that

(a) Except as provided in AS 23.40.240, at the state level a proposed bargaining unit is not an appropriate bargaining unit if it combines:

(1) supervisory personnel with nonsupervisory personnel;....

Although we are aware that courts, rather than administrative agencies, determine the validity of regulations, we nonetheless address the validity of 8 AAC 97.090(a)(1) and 8 AAC 97.990(a)(5) because the remand order requires this Agency to examine whether its regulations are consistent with the statute. See, e.g., State of Alaska, Department of Labor, Wage and Hour Administration v. Board of Trade, Inc., Case No. PWF-0892-046, at 13 (Oct. 31, 1995). Part of the test for determining a regulation's validity is whether it is consistent with the statutes under which it was adopted.

The Alaska Supreme Court examines the validity of a regulation by looking first at the legislature's grant of authority to determine whether the Agency is authorized to adopt legislative regulations or whether the authority is merely to adopt interpretative regulations. Kelly v. Zamarello, 486 P.2d 906, 909 (Alaska 1971). The difference is important because it affects the tests to be applied.

Legislative regulations are authorized if the legislature has given an agency "discretion as to the particular matter that forms the subject of the regulation." Id., at 911. The court has established a two-part test for reviewing legislative regulations:

[F]irst, we will ascertain whether the regulation is consistent with and reasonably necessary to carry out the purposes of the statutory provisions conferring rule-making authority on the agency. This aspect of review insures that the agency has not exceeded the power delegated by the legislature. Second, we will determine whether the regulation is reasonable and not arbitrary.

Id., at 911.

Regulations that are not legislative are interpretative. The test for reviewing interpretative regulations is set forth in Whaley v. State. The test requires that the regulation (a) has been adopted pursuant to statutory authority, (b) is not unreasonable, and (c) is in accord with the terms and purposes of the statutes pursuant to which it was adopted. Whaley v. State, 438 P.2d 718, 722 (Alaska 1968). If this test is met, the court will not overrule the administrative interpretation except for weighty reasons. Id. An administrative regulation is presumed to be valid, and the challenger of the regulation must demonstrate its invalidity. Anchorage School Dist. v. Hale, 857 P.2d 1186, 1188 (Alaska 1993) quoting Alaska Int'l Indus. v. Musarra, 602 P.2d 1240, 1245 n.9 (Alaska 1979); Union Oil Co. of California v. State, 574 P.2d 1266, 1271 (Alaska 1978).

Because the level of scrutiny is higher under Whaley, we will examine the validity of 8 AAC 97.090(a)(1) by applying the tests set forth in Whaley.

a. Has 8 AAC 97.090(a)(1) been adopted pursuant to statutory authority?

AS 44.62.020 requires that "To be effective, each regulation adopted must be within the scope of authority conferred." ALRA's authority to adopt regulations is found in three statutes, AS 23.05.380, 23.40.170, and 42.40.820. The two statutes that pertain to State employees provide as follows:

AS 23.05.380. Regulations. The agency shall adopt regulations under the Administrative Procedure Act (AS 44.62) to carry out labor relations functions under AS 23.05.360 -- 23.05.390, AS 23.40.070 -- 23.40.260, and AS 42.40.730 -- 42.40.890.

AS 23.40.170. Regulations. The labor relations agency may adopt regulations under the Administrative Procedure Act (AS 44.62) to carry out the provisions of AS 23.40.070 -- 23.40.260.

The legislature has conferred on the Agency at least the authority to adopt interpretative regulations that carry out labor relations functions and implement PERA. When it adopts regulations, the Agency must follow the rule making procedures in the Administrative Procedure Act (APA). Among the required APA procedures are notice of the proposed adoption, a public hearing, and consideration of all relevant matters presented to the agency before adoption. AS 44.62.180 -- 44.62.290. ASEA did not, however, base its challenge on noncompliance with these rule making procedures. Because the adoption procedures have not been challenged, there is a presumption that the "official duty was regularly performed." Kelly v. Zamarello, 486 P.2d, at 909.

ASEA does argue that the Agency has exceeded its substantive legislative authority by adopting 8 AAC 97.090(a)(1). It argues that the regulation that separates supervisory personnel from nonsupervisory personnel is invalid because the legislature has not specifically stated that it wants supervisors to be in a different bargaining unit. ASEA relies on the National Labor Relations Act (NLRA), which expressly excludes supervisors from its definition of "employee." 29 U.S.C. § 152(3) (West 1996). Under the analogous section in PERA, 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." However, the exclusion of supervisors from coverage under the NLRA differs from determining the appropriate bargaining unit for employees eligible to bargain under PERA.

Although both the NLRA and PERA authorize the respective boards to determine the appropriate bargaining unit for employees, there are differences between the two grants of authority. The NLRA restricts the Board's authority concerning specific positions that can be placed in a bargaining unit and lists types of appropriate units. 29 U.S.C. § 159(b), provides that,

The Board shall decide in each case whether, in order to assure to employees the fullest freedom in exercising the rights guaranteed by this subchapter, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof: Provided, That the Board shall not (1) decide that any unit is appropriate for such purposes if such unit includes both professional employees and employees who are not professional employees unless a majority of such professional employees vote for inclusion in such unit; or (2) decide that any craft unit is inappropriate for such purposes on the ground that a different unit has been established by a prior Board determination, unless a majority of the employees in the proposed craft unit vote against separate representation or (3) decide that any unit is appropriate for such purposes if it includes, together with other employees, any individual employed as a guard to enforce against employees and other persons rules to protect property of the employer or to protect the safety of persons on the employer's premises; but no labor organization shall be certified as the representative of employees in a bargaining unit of guards if such organization admits to membership, or is affiliated directly or indirectly with an organization which admits to membership, employees other than guards.

In contrast, the legislature did not limit the Agency's authority by restricting the specific employee positions that can be placed in bargaining units or listing the types of units that are appropriate. It did not itself establish any public employee bargaining units or mandate that all employees be in one unit. The legislative history is not helpful. The supreme court has noted that PERA does not have any legislative history. Public Safety Employees Ass'n v. State, 799 P.2d 315, 319, n.7 (Alaska 1990). Thus, the language in PERA must be the starting point for analysis of the Agency's authority. See Sonneman v. Hickel, 836 P.2d 936, 940 (Alaska 1992).

In AS 23.40.090, the legislature granted the discretion and authority to the Agency to determine appropriate bargaining units and provided certain parameters to guide that discretion. AS 23.40.090 provides that,

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.

When it named the factors, the legislature used the language "such factors as." Thus, the list appears to be illustrative of the kinds of factors appropriate to consider rather than an exclusive list. The legislature left the number, weight, and combination to the discretion of the Agency. However, it clearly requires consideration of one factor: the prohibition against fragmentation. In a decision that affirmed Public Safety Supervisory Ass'n v. State and addressed AS 23.40.090, the superior court has stated, "The fact that the statutes do not tell the agency what weight to give the criteria doesn't make the statute void. It allows the agency deference in performing its fact finding function." Public Safety Supervisory Ass'n v. State of Alaska, No. 3AN-95-6653 CI, slip op. at 5 (Jan. 22, 1997); aff’g Decision & Order No. 188 (May 25, 1995).

8 AAC 97.090(a)(1) addresses appropriate bargaining units and requires a separate bargaining unit for State supervisory and nonsupervisory employees. An obvious source of authority for determining bargaining units is AS 23.40.090. When the SLRA first established the State bargaining units under AS 23.40.090, it determined that all State employees shared a community of interest stating,

[T]hey provide services to the people of Alaska at the direction of the elected representatives of the people. They all come under a common civil service merit system and their compensation is set by the legislature. There is a uniform grievance procedure and a uniform system of progressive discipline. Recruitment, examination, transfer, promotion, orientation and training are conducted on a uniform, system-wide basis.

Concerning Petitions Number 1-72, 2-72, 3-72, 4-72, 5-72, and Relevant Interventions and Objections, SLRA Order & Decision No. 1, at 10. Despite these common bonds, the SLRA nonetheless found that the general government unit was an appropriate unit, excluded supervisors from that unit, and established a separate supervisory unit. Id., at 10; Concerning the Petition for Collective Bargaining Representative of Supervisory Employees of the State, SLRA Order & Decision No. 8, at 2-3.

Examining the factors in AS 23.40.090, we note that the community of interest between nonsupervisory and supervisory personnel is different. The most important feature that distinguishes supervisory employees from nonsupervisory employees is the supervisors' responsibility to supervise employees and administer and enforce the employer's personnel policies. This responsibility distinguishes supervisors' working conditions from the working conditions of nonsupervisory employees in significant ways and establishes a community of interest among supervisory employees. See discussion infra, subsections C.5.b. & c. and 6.a. & b.

Thus, the regulation is consistent with the statute. The Agency did not exceed the statutory authority granted by the legislature in adopting 8 AAC 97.090(a)(1), based on the discretion and the duty the legislature conferred on the Agency in AS 23.40.090 and the rule making authority granted in AS 23.40.380 and AS 23.40.170. We conclude that the regulation satisfies the first part of the test in Whaley. 8 AAC 97.090(a)(1) was adopted pursuant to statutory authority.

b. Is 8 AAC 97.090(a)(1) unreasonable?

AS 44.62.030 provides in part that "a regulation adopted is not valid or effective unless ... reasonably necessary to carry out the purpose of the statute." 8 AAC 97.090(a)(1) is reasonably necessary to carry out the provisions of AS 23.40.090 due to characteristics that distinguish the State from other public employers subject to PERA. For example, the State employs the largest workforce, has the greatest number of employment locations, and provides more diverse services than other public employers subject to PERA. The difference in size of bargaining units at the political subdivision and state level supports a separate bargaining unit for supervisory and nonsupervisory personnel at the State level. When the Agency makes unit determinations, it must consider the statutory prohibition against unnecessary fragmenting, along with other factors listed in AS 23.40.090. If the requirement to separate supervisory and nonsupervisory employees existed for all public employees, it might not work for political subdivisions because the units can be so small. Compare Concerning Petitions Number 1-72, 2-72, 3-72, 4-72, and Relevant Interventions and Objections, SLRA Order & Decision No. 1 with In re International Longshoremen's & Warehouseman's Union, Local 220, Decision & Order No. 134 (June 19, 1991). Adopting a regulation that establishes bargaining unit parameters for the largest public employer in the State is a reasonable exercise of the discretion granted by the legislature in AS 23.40.090.

ASEA argues that 8 AAC 97.090(a)(1) is unreasonable because it moves conflicts of interest to the supervisory bargaining unit rather than eliminating them. AS 23.40.090 does not require that all conflicts of interest be eliminated; however, it does prohibit unnecessary fragmenting. On balance, the unnecessary fragmenting mandate in AS 23.40.090 is more compelling than ASEA's argument about potential conflicts of interest. Requiring additional supervisory bargaining units for each level of supervision would unduly burden the State with negotiating and administering a greater number of collective bargaining agreements. In contrast, any conflicts of interest that could occur by having different levels of supervisory employees in the same bargaining unit are less significant. The community of interest that all State supervisors share by administering and enforcing the State's personnel policies with regard to subordinates distinguishes them from all other State employees who do not perform these duties.

ASEA further argues that conflicts that could occur by having supervisors in the general government bargaining unit are resolved by its contract, which requires step one grievances to be handled by the first level supervisor outside of the bargaining unit. Conflicts can occur in functions other than grievance adjudication. See discussion infra, subsection C.5.c. Thus, the inherent conflict that occurs by placing supervisors in the same unit as nonsupervisory employees, including their subordinates, is not resolved by the ASEA/State agreement.

In sum, the regulation requiring the separation of supervisory and nonsupervisory employees at the State level only is not unreasonable. The difference in the size of the States’ workforce justifies a separate unit for supervisors at the State level only. The prohibition against unnecessary fragmenting, the inherent conflict of interest that occurs when supervisory and nonsupervisory personnel are in the same unit, and the community of interest that supervisors share, are compelling reasons supporting one unit of supervisory employees. See Public Safety Supervisory Ass'n v. State of Alaska, Decision & Order No. 188, at 7, 20-22, & 27 (May 25, 1995), aff’d No. 3AN-95-6653 CI (Jan. 22, 1997).

We conclude that the regulation satisfies the second part of the test in Whaley; 8 AAC 97.090(a)(1) is not unreasonable.

c. Is 8 AAC 97.090(a)(1) in accord with the terms and purposes of the statutes pursuant to which it was adopted?

The third requirement of the Whaley test is whether the regulation is consistent with its statutory framework. 8 AAC 97.090(a)(1) is consistent with AS 23.40.090 because it supports the legislative policy of approving bargaining units that are as large as reasonable, thereby avoiding unnecessary fragmenting. Acting on the discretionary authority that the legislature has conferred to determine the appropriate bargaining unit, both the SLRA and this Agency adopted the regulation that prohibits State supervisory personnel from being in the same unit as State nonsupervisory personnel.

Sound policy considerations support a separate bargaining unit for supervisors. The separation eliminates or reduces the inherent conflicts of interest that can occur when supervisory employees are in the same unit as nonsupervisory employees. Employees who must juggle the interests of management as an employer and who share membership in a bargaining unit with nonsupervisory employees, including subordinates, can experience significant conflicts of interests. These conflicts can interfere with employees' exercise of rights protected in AS 23.40.080, such as filing grievances or serving as a shop steward in the labor organization. See Public Safety Employees Ass'n v. State of Alaska, Decision & Order No. 211, at 12 (Jan. 16, 1997). Moreover, an employer that permits an employee to perform supervisory duties and act as a shop steward in the same bargaining unit as subordinates risks committing an unfair labor practice. Munson v. State of Alaska, Decision & Order No. 206, at 16, & 21-29. Conflicts can occur during discipline proceedings, such as investigatory interviews or grievance or arbitration hearings. If the supervisor and subordinate are in the same bargaining unit and both seek representation by the labor organization at a disciplinary proceeding, the labor organization is faced with deciding which employee it will represent; it risks violating the duty of fair representation that it owes to all employees. Other types of conflicts could occur during organizational activities. For example, if an election were held to decertify the current representative and certify another representative, a supervisor who is in the same unit and attends organizational meetings with subordinates is in a position to observe or even influence subordinates' support for a particular labor organization, exposing the employer to liability for an unfair labor practice. Yet other conflicts could occur during negotiations for a new agreement. A supervisor who is in the same bargaining unit as nonsupervisory employees could possess knowledge of union strategies for strike activity due to membership in the same unit. The supervisor could be placed in the position of deciding between exercising protected rights and implementing the goals of the labor organization or abiding by an employer's plan to use supervisors to provide minimum service levels during a strike. Moreover, the presence of supervisors in the same bargaining unit could interfere with employees' attempts to rectify problems through the labor organization because employees could be reluctant to speak in front of management's representatives.

The Agency addressed how supervisors share a community of interest in Decision & Order No. 188, which concerned the proposed severance of a unit of trooper supervisors from the supervisory unit. The Agency denied severance and found that,

The defining characteristic of the supervisory unit is the supervisory role of its members. The members of the unit are the State's representatives and are responsible to direct the work, hire, fire, and adjudicate grievances. These responsibilities separate these State employees from the employees in the other units. . . . [Supervisors] share their supervisory responsibilities with all other members of the supervisory bargaining unit. Each supervisor in the unit is responsible to supervise work in a department that has a special function or responsibility assigned to it. Each supervisor will be specially trained and experienced in that function and will be required to comply with rules and procedures specific to that department. All State departments have employees who specialize and include supervisors who have the same relationship with subordinates as the trooper supervisors in the Department of Public Safety. An example is the supervising nurses in the Pioneer Homes. They have special training, procedures, and rules of conduct. They must understand the work performed in the ranks and in many cases come up through the ranks themselves.

Public Safety Supervisory Ass'n v. State, Decision & Order No. 188, at 7, aff’d No. 3AN-95-6653-CI, (Jan. 22, 1997). Moreover, in the same decision, the Agency determined that there are similarities in the manner in which State supervisors perform their supervisory duties, stating that,

The supervisors in the various departments supervise in the same way as a result of a centralized system resulting from the State Personnel Act, AS 39.25.010--39.25.220, personnel rules, 2 AAC 07.085--2 AAC 07.810, the rights State employees have in common, AS 39.26.010--39.26.020, State pay and leave laws, AS 39.27.011--39.27.045, and Department of Administration required procedures. These shared responsibilities are the basis of a community of interest with all other State supervisors in the supervisory unit.

Id., at 22.

Supervisory responsibilities distinguish supervisors' duties from those of nonsupervisory employees. For example, supervisors may be responsible to decide or recommend costs savings to meet budget reductions; determine which of their subordinates is most qualified to receive a promotion; investigate alleged violations of policy; suspend, demote, or even discharge an employee; or adjudicate grievances by conducting an investigation and finding either that the employer needs to correct a problem or that the grievance must be denied. The supervisor is expected to demonstrate the high degree of loyalty that he or she owes to the employer to act in the employer's interest even though the choices the supervisor makes may not always be in the subordinates' best personal interests. Because supervisors have different working conditions and responsibilities than nonsupervisors, the regulation requiring a separate bargaining unit for State supervisors is in accord with the statutes.

ASEA argues that 8 AAC 97.090(a)(1) requires separate bargaining units for different levels of supervisors. Thus, it claims that the regulation is invalid because it causes excessive fragmentation. However, the plain language of the regulation does not support this interpretation: it only requires that supervisory personnel be in a separate bargaining unit from nonsupervisory personnel.

ASEA also argues that 8 AAC 97.090(a)(1) is not consistent with the statute and is therefore invalid because it destroys the distinction between bargaining units by blurring the line between general government unit work and supervisory unit work. ASEA maintains that 8 AAC 97.090(a)(1) destroys the unique character of general government unit work, but does not specify what is unique. The general government unit consists of a large number of classifications that perform a great variety of work. The ASEA/State agreement does not describe the work in the general government unit. Instead, it describes the unit as "all permanent, probationary, provisional and nonpermanent personnel (excepting those employed in the Student, College, and Graduate Intern job classes) in the General Government Unit." Exh. A, at 2, N.Johnson 1; Exh. 6, at 2, E. Johnson 1; Exh. 101, at 2, Litzen 1. The general government unit is the "catch-all" unit for classified positions that are not in another bargaining unit. Some of these other units are supervisory, confidential, building and construction trades, and law enforcement. See Concerning Petitions Number 1-72, 2-72, 3-72, 4-72, 5-72, and Relevant Interventions and Objections, SLRA Order & Decision No. 1; SLRA Order & Decision No. 5 (Aug. 15, 1973); Concerning the Petition for Collective Bargaining Representative of Supervisory Employees of the State, SLRA Order & Decision No. 8; Pertaining to Confidential Bargaining Unit and by Confidential Employees Ass'n, SLRA Order & Decision No. 9 (Jan. 17, 1974); Pertaining to a Unit Authorization Petition by the Public Safety Employees Ass'n, Inc. v. State of Alaska, SLRA Order & Decision No. 28 (Jan. 18. 1977). The general government unit continues to perform the work that is not performed by members of other bargaining units. Therefore, 8 AAC 97.090(a)(1) does not destroy the character of the general government unit work.

ASEA also argues that 8 AAC 97.090(a)(1) is invalid because the State could assign some supervisory functions in the regulation to a large number of employees and move them from the general government unit to the supervisory unit, thus causing the general government unit to lose work. Neither PERA nor the regulations interpreting it limit the number of bargaining unit transfers that the State can initiate. Certainly some flexibility is needed to accommodate changes, such as State government reengineering and reorganization to meet reduced funding levels, adjustments in the types of services provided, or changes in the tools, equipment, or methods used to provide the services. The responsibility to determine bargaining unit changes through unit clarification procedures is consistent with the duty to determine the appropriate bargaining unit in AS 23.40.090.

8 AAC 97.050(a)(1) allows unit clarification petitions filed by a public employer or a public employee representative seeking to clarify "an existing bargaining unit, where no question concerning representation exists, in order to resolve a question of unit composition raised by changed circumstances since certification." There is a history of bargaining unit changes since PERA was adopted in 1972. E.g., Pertaining to Petitions for Clarification of Supervisory Status, SLRA Order & Decision No. 15; Pertaining to Petition by Department of Administration to Reallocate Two Positions from General Government Unit to Confidential Employees Unit, SLRA Order & Decision No. 32 (Jan. 23, 1978); In re: Unit Determination of Alan Pollard; PCN-023925, and Robin Bolwwicz: PCN-0238919, SLRA Order & Decision No. 78A (Sept. 8, 1983); State of Alaska v. Public Employees Local 71, Decision & Order No. 144. Petitions filed have addressed individual positions or large numbers of positions. Compare Pertaining to the Unit Clarification Petition 78-9 Regarding the Unit Placement of Payroll Supervisor I, SLRA Order & Decision No. 45 (May 5, 1979) with Pertaining to Unit Allocation of Individuals, SLRA Order & Decision No. 26A, at 1 (Feb. 23, 1977). (Transfer of 250 employees from the supervisory unit to the general government unit).

The State and the unions representing State employees are familiar with the unit clarification process. Both ASEA and APEA have negotiated provisions with the State to handle bargaining unit changes. See discussion supra, subsection C.3.

Suspicions of the State's motives for initiating bargaining unit changes do not make 8 AAC 97.090(a)(1) invalid. 8 AAC 97.090(a)(1) merely continues the historical separation under PERA of State supervisory personnel from nonsupervisory personnel and groups together employees who share a community of interest under AS 23.40.090.

The regulation therefore meets the third requirement in Whaley. It is consistent with the AS 23.40.090. 8 AAC 97.090(a)(1) is valid because it has been adopted pursuant to statutory authority, is not unreasonable, and is in accord with the terms and purposes of the statutes pursuant to which it was adopted. By requiring separate bargaining units for supervisors and nonsupervisors at the State level, 8 AAC 97.090(a)(1) provides a mechanism that allows supervisory employees to exercise bargaining rights granted under PERA in a manner that least conflicts with their role as the State's representatives who administer and enforce the State's personnel policies. Because the regulation satisfies all three requirements for the validity of a regulation under Whaley, the regulation is valid, and ASEA's motion to declare 8 AAC 97.090(a)(1) invalid is denied.

6. Is 8 AAC 97.990(a)(5) valid?

On July 30, 1996, ASEA moved to declare 8 AAC 97.990(a)(5) invalid. Under 8 AAC 97.990(a)(5),

"supervisory employee" means an individual, regardless of job description or title, who has authority to act or to effectively recommend action in the interest of the public employer in any one of the following supervisory functions, if the exercise of that authority is not merely routine but requires the exercise of independent judgment:

(A) employing, including hiring, transferring, laying off, or recalling;

(B) discipline, including suspending, discharging, demoting, or issuing written warnings; or

(C) grievance adjudication, including responding to a first level grievance under a collective bargaining agreement;

Applying the tests in Whaley, we examine the validity of 8 AAC 97.990(a)(5).

a. Has 8 AAC 97.990(a)(5)been adopted pursuant to statutory authority?

AS 23.05.380 and AS 23.40.170 provide the Agency with authority to adopt interpretative regulations. See discussion supra, subsection C.5.a. 8 AAC 97.990(a)(5) is authorized by AS 23.05.380 and AS 23.40.170. AS 23.05.360 -- 23.05.370 and AS 23.40.070 -- 23.40.260 require the Agency to adopt regulations in accordance with the procedures in the APA. ASEA has not challenged the adoption procedure for AAC 97.990(a)(5). The regulation is presumed to be valid. See discussion supra, subsections C.5. & 5.a.

AS 23.40.090 authorizes the Agency to determine the appropriate bargaining unit. Defining "supervisory employee" and prohibiting the combination of supervisory and other employees in 8 AAC 97.990(a)(5) and 8 AAC 97.090(a)(1) is an exercise of this authority. Unlike the NLRA, PERA does not exclude "supervisors" from bargaining. Compare 29 U.S.C. § 152(11) with AS 23.40.250(6). Although supervisors have bargaining rights under PERA, the Agency through these regulations recognizes the important differences between supervisors and other employees. The primary difference is their authority to act in the employer's interests in personnel matters that affect the working conditions of subordinates. This difference in duties and the inherent conflict of interest that occurs makes a separate unit for supervisors appropriate, despite some similarities shared with other State employees. See discussion supra, subsections C.5.b. & c. Adopting the regulation defining "supervisory employee" is a reasonable exercise of the Agency's authority under AS 23.05.380, AS 23.40.170, and AS 23.40.090. 8 AAC 97.990(a)(5) is within the scope of authority conferred by the authorizing statutes.

b. Is 8 AAC 97.990(a)(5) unreasonable?

8 AAC 97.990(a)(5) is reasonably necessary to carry out the labor relations functions under PERA, including determining the appropriate bargaining units for employees. See discussion supra, subsection 5(a). Establishing parameters for those units is a reasonable exercise of Agency discretion. The regulation defines supervisory employee in a straightforward manner, which enables all employers and labor organizations subject to PERA, not just the parties in this case, to make bargaining unit determinations on a more predictable basis. It reduces conflicts for both labor and management by insuring that employees who share a community of interest under AS 23.40.090 will be in the appropriate bargaining unit. See discussion supra, subsections C.5.b. & c.

Because supervisors have bargaining rights under PERA, the question is how to best accommodate those rights. A unit that mixes management's representatives with rank and file employees usually will not be an appropriate unit. Small political subdivision units could be an exception because the prohibition against fragmenting could outweigh the factors that support a different unit for supervisors. Conflicts can occur when supervisors are included in the same unit as rank and file employees. See discussion supra, subsections C.5.b. & c. Including in one unit employees who share a community of interest insures that conflicts of interest will be minimized, rather than spread throughout several bargaining units. The regulation strikes a reasonable balance between accommodating supervisors' bargaining rights under PERA and the employer's expectations that its supervisors will represent its interests in performing the supervisory functions in the regulation.

c. Is 8 AAC 97.990(a)(5) in accord with the terms and purposes of the statutes pursuant to which it was adopted?

8 AAC 97.990(a)(5) is in accord with the terms and purposes of the authorizing statutes. The regulation guides the Agency in determining appropriate bargaining units under AS 23.40.090 because it establishes who is a supervisor.

ASEA argues that 8 AAC 97.990(a)(5) is inconsistent with the bargaining unit criteria listed in AS 23.40.090 because the regulation focuses on authority rather than the statutory criteria

of wages, hours, and terms and conditions of employment. AS 23.40.090 does not limit the Agency to the factors listed in AS 23.40.090. See discussion supra, subsection C.5.a. Even if it did, the supervisory employee definition addresses community of interest and working conditions, two factors in AS 23.40.090. Supervisors share a community of interest due to their responsibility to supervise employees. Some of their working conditions differ from those of nonsupervisory employees due to their supervisory responsibilities. Supervisors could not perform supervisory duties without authority to do so. Therefore, authority is appropriately addressed in 8 AAC 97.990(a)(5).

Possessing authority over employees is important in determining supervisory status under federal law as well. In a treatise on NLRB Representation Elections, the authors state,

Under this definition [of supervisor], the supervisory status of an employee is determined by a worker's actual duties; his title or job classification is of probative value but is not conclusive. Moreover, supervisory status does not necessarily depend upon the frequency of the exercise of supervisory authority, but rather the existence of the power to direct other employees. Finally, it has been held that the authority to exercise or actual exercise of any of the above functions may cause one to be classified a supervisor even though the balance of that individuals's time is spent in normal production and maintenance duties.

John D. Feerick, et. al., NLRB Representation Elections Law, Practice & Procedures § 9.1.7, at 425 (3rd ed. 1994 Supplement) (citations omitted) (emphasis added).

Similarly, we have determined that authority to act or effectively recommend action in at least one of three important supervisory functions, employing, discipline, or grievance adjudication, is necessary for an employee to be a supervisor under the regulation. The factors that ASEA suggests are most important, wages, hours, and terms and conditions of employment, are mandatory subjects of bargaining, which are controlled by contract. Alaska Public Employees Ass'n v. State, 831 P.2d 1245, 1248 (Alaska 1992). AS 23.40.070(2) provides in part that the State must "negotiate with and enter into written agreements with employee organizations on matters of wages, hours, and other terms and conditions of employment." Thus, the employee will work the hours and receive the wages and benefits that are included in the bargaining agreement that governs the unit in which the employee's position is located. Exh. A, at 2, N. Johnson 1; Exh. 6, at 2, E. Johnson 1; Exh. 101, at 2, Litzen 1. In these cases, the strong community of interest and different working conditions that supervisors share outweigh the factors of wages and hours. See discussion infra, subsection C.9.

ASEA further argues that 8 AAC 97.990(a)(5) is inconsistent with the statute because it creates discrimination among classes of public employees. PERA covers State, school district and political subdivision employees but only State supervisory employees must be in separate bargaining units under AS 8 AAC 97.090(a)(1). However, the question who is a supervisor can arise in all employment sectors and the Agency applies this same definition each time it does. E.g. Yukon-Koyukuk Educational Support Personnel Ass'n, NEA-Alaska v. Yukon-Koyukuk School District, Decision & Order No. 175, at 8 (May 13, 1994). The regulation defining supervisory employee is not discriminatory, nor is it invalid, merely because the Agency exercises the discretion granted in AS 23.40.090 and determines that supervisors may appropriately be included with other employees in some small political subdivision units.

ASEA also argues that 8 AAC 97.990(a)(5) is inconsistent with AS 23.40.090 because it allows the State to manipulate the duties of State employees to include enough supervisory duties to promote out of the bargaining unit, thereby causing the general government unit to lose positions. Neither the plain language of the regulation nor AS 23.40.090 address the State's assignment of duties to a position. ASEA's argument that the State is engaging in conduct that interferes with employees’ rights to belong to a particular labor organization or otherwise engage in concerted activities under AS 23.40.080 could be made more appropriately under AS 23.40.110, which addresses unfair labor practice charges. However, an unfair labor practice charge cannot be decided under the guise of a unit clarification petition. We will not consider this issue further in the adjudication of these cases.

ASEA is concerned because supervisors under 8 AAC 97.990(a)(5) spend varying amounts of their time performing the supervisory functions in the regulation and may spend the remainder of their time performing duties that are similar to those performed by other members of the general government unit. However, 8 AAC 97.990(a)(5) does not require that a supervisor spend a certain amount of time performing the supervisory functions in the regulation. Employing, disciplining, and adjudicating grievances are duties that supervisors will perform when the need arises. All supervisors will likely perform some work that is performed by members of another bargaining unit. Public Safety Supervisory Ass’n v. State, Decision & Order No. 188, at 7. However, this does not diminish the supervisor's authority to supervise, which is the factor that separates supervisory employees from general government unit employees.

Regardless of possible economic interests of competing unions, the Agency, as a neutral agency, must focus on its duty in AS 23.40.090 to determine the appropriate unit for collective bargaining and approve units with workable boundaries that will help promote the legislative policies in AS 23.40.070. In a modern government workforce, reorganization, downsizing, and shrinking budgets are a reality. Flexibility is needed to accommodate changes. It is unreasonable to require the State to segregate its workforce so that all employees will perform only general government work or supervisory work each minute of the day. Inevitably, there will be employees who perform mixed duties. The Agency's responsibility, then, is to determine the unit with which they share the greatest community of interest.

We therefore conclude that 8 AAC 97.990(a) and (c) meets the three requirements in Whaley. The regulation was adopted pursuant to statutory authority, is reasonable, and in accord with the terms and purposes of the statutes pursuant to which it was adopted. It provides a straightforward definition that enables employers and labor organizations to determine if a position is supervisory. ASEA's motion to declare 8 AAC 97.990(a)(5) invalid is denied.

7. Does the mandatory separation of supervisory personnel from nonsupervisory personnel at the State level only, and not for school or political subdivision employees, violate Executive Order No. 77?

Executive Order No. 77 consolidated the three labor relations agencies into the present agency. ASEA argues that 8 AAC 97.090(a)(1) violates this Order because it discriminates among types of public employees by requiring separate bargaining units for supervisory and nonsupervisory personnel at the State level only. ASEA maintains that because Executive Order No. 77 requires all labor cases to be decided by a single agency, they all should be decided under a single set of criteria. Another argument ASEA makes is that the repeal of AS 23.40.230 removed all statutory references allowing different treatment of groups of public employees.

These arguments ignore the purpose and effect of Executive Order No. 77, which was to enhance operational efficiency. There was no intent to change substantive law:

As governor, I find that it would be in the best interest of efficient administration to reassign the labor relations functions of the Department of Administration personnel board, the Department of Labor, and the railroad labor relations agency into one state agency, the Alaska Labor Relations Agency, in the Department of Labor. This reassignment is necessary in order to increase the efficient and effective management of labor relations, without changing the substantive rights and responsibilities of parties subject to the present agencies' jurisdiction. Such a reassignment will enhance the opportunities for impartial and independent labor relations decision-making in the state.

Executive Order No. 77, § 1 (July 1, 1990)(emphasis added).

We have already addressed and rejected ASEA's discrimination argument in examining the validity of 8 AAC 97.090(a)(1). See discussion supra, subsection C.6.c. We do not find that the prohibition against combining supervisory and nonsupervisory personnel in the same bargaining unit at the State level only discriminates among classes of public employees in violation of Executive Order No. 77 or that Executive Order No. 77 requires the Agency to use a single set of criteria to make bargaining unit determinations. The regulation continues the practice, in effect since 1973, of separate bargaining units for State supervisory and nonsupervisory personnel. Moreover, 8 AAC 97.990(a)(1) does not interfere with "impartial and independent labor relations decision-making in the state" under Executive Order No. 77.

ASEA relies upon Alaska Public Employees Ass'n v. Cordova, Decision & Order No. 137 (Dec. 31, 1991), which rejected extending to the political subdivisions the per se approach in 8 AAC 97.090(a)(1) of separating supervisory from nonsupervisory employees. The decision in this case recognizes some important differences between political subdivisions and the State, including the size of the workforce and the centralization of authority. The decision does not reject the reasons for separating supervisors from nonsupervisors. Instead, it reserves the issue for case-by-case resolution.

Applying the factors in AS 23.40.090 to school district and political subdivision employers does commonly result in the separation of supervisory and nonsupervisory employees. E.g., Alaska Gateway Education Support Personnel v. Alaska Gateway School District, Decision & Order No. 154 (Feb. 26, 1993); Yukon-Koyukuk Educational Support Personnel Ass'n, NEA-Alaska v. Yukon-Koyukuk School District, Decision & Order No. 175, at 8; International Bhd. of Electrical Workers Local Union 1547 v. Cordova, Decision & Order No. 177 (Oct. 13, 1994); Public Employees Local 71 v. Bristol Bay Borough, Decision & Order No. 181 (Dec. 16, 1994). These decisions demonstrate that the Agency has engaged in "impartial and independent labor relations decision-making" under Executive Order No. 77 and that it has exercised the duty and discretion in AS 23.40.090 to determine the appropriate bargaining unit in each case.

Part of ASEA's argument that Executive Order No. 77 prohibits different treatment of the employees of the State and political subdivisions of the State is the repeal of AS 23.40.230. Before its repeal, AS 23.40.230 stated "[W]hen state employees are involved, the Department of Labor shall, if requested by the personnel board, and if there is no objection by the organization involved, assist the personnel board on such matters as, but not limited to, conducting elections and investigating unfair labor practices." AS 23.40.230 did not expressly state that public employees could be treated differently. For example, it did not establish different standards for conducting elections or investigating unfair labor practice charges. It simply allowed the Department of Labor to assist the personnel board with certain functions. Because AS 23.40.230 never expressly authorized different treatment of State employees, its repeal should have no impact.

In sum, we do not find that 8 AAC 97.090(a)(1) violates Executive Order No. 77.

8. Does the ASEA/State agreement control the version of the regulation that applies?

ASEA argues that 2 AAC 10.220(b)(3), the supervisory employee regulation that was in effect when the parties' negotiated their first agreement, should be applied. ASEA filed a grievance over this issue and the arbitrator rejected this argument in his decision. Exh. 53. We agree with the arbitrator's decision. Even if the agreement were to dictate the version of the regulation that applies, the Agency's role in deciding a unit clarification petition would be to apply the statutes and regulations, and not to enforce the agreement.

9. Under AS 23.40.090 are the positions occupied by Nathan Johnson, Eric Johnson, and Kellie Litzen appropriately in the supervisory unit or the general government unit?

The State must establish that the positions occupied by Nathan Johnson, Eric Johnson, and Kellie Litzen are appropriately placed in the supervisory unit, based on such factors in AS 23.40.090 as community of interest, wages, hours, and other working conditions of the employees involved, the history of collective bargaining, the desires of the employees, and the prohibition against unnecessary fragmenting.

a. Community of interest.

The two Johnsons and Litzen share a community of interest with the supervisory unit due to their responsibility to supervise employees and enforce the State's personnel policies. N. Johnson supervises one subordinate. Exh. 1, at 6, N. Johnson 1. Eric Johnson supervises three subordinates and is responsible for a fourth one during the winter months. Exh. 1, at 7, E. Johnson 1. Litzen now supervises one employee and shares supervisory responsibility for a jointly funded position. Exh. 1, at 10, Litzen 1; Exh. AK. The two Johnsons and Litzen have authority to act or effectively recommend action in the interest of the State in all three of the supervisory functions in 8 AAC 97.990(a)(5), even though it is only required in one of the functions. See discussion infra, subsection C.11.

The class specifications for the positions occupied by N. Johnson, E. Johnson, and Litzen anticipate that these positions will perform supervisory duties. The minimum qualifications in the class specification for the statewide environmental coordinator position, occupied by N. Johnson, require candidates to have "Six years of professional experience in the environmental field involved in the development or review of transportation, facilities, or public works projects. At least one year of this experience must be at the supervisory level, or two years must be at the lead/advanced level." Among the knowledge, skills, and abilities required is the "Ability to supervise, plan and review the work of professional subordinates from a variety of disciplines." Exh. 4, N. Johnson 1. The class specification for the technical engineer II/architect II position, occupied by E. Johnson, states that the position "may be assigned lead or supervisory responsibilities." Exh. 4, E. Johnson 1. The class specification for the natural resource manager I position, occupied by Litzen, states in part that "The following tasks are typical: supervising other professional, technical, and/or clerical employees ...." Exh. 4, Litzen 1. But see the description for the natural resource manager II, which states that all positions are supervisory, with authority for appointing, promoting, transferring, suspending, discharging, and adjudicating the grievances of subordinates." Exh. 4, Litzen 1. However, the organizational chart for the Division of Mining & Water Management where Litzen works does not contain any natural resource manager II positions. It does show two other natural resource manager I positions. One position, occupied by Alison, does not reflect supervision of any employees. The other one, occupied by Lozano, lists two subordinates who report to Lozano. Exh. AK. In the first hearing, Litzen's supervisor, Gary Prokosch, testified that Litzen has authority to act or effectively recommend action in the employing, discipline, and adjudication functions in the regulation. Finding of fact nos. 10, 14, & 17, Litzen 1.

These three employees' supervisory responsibilities outweigh other similarities that they share with members of the general government unit, such as the type of program duties that they perform; the office configuration; types of meetings or training that they attend; or the amount of time that they spend working with subordinates versus other supervisors.

b. Wages and hours.

Wages and hours are determined by contract. See discussion supra, subsection C.6.b. The three employees receive the wages and work the hours that have been negotiated for the collective bargaining agreement that governs the unit in which they are currently placed. The evidence submitted for these factors concerned overtime eligibility. None of these three employees is eligible for overtime. However, there is no evidence in the record to show if general government unit members are exempt from overtime or if other supervisors are also exempt from overtime. Because the three employees are currently in the supervisory unit, we can infer that their wages and hours are more like the wages and hours of other supervisors. The factors of wages and hours thus provide weak support for the status quo, which is now the supervisory unit. Prior to the decision in N. Johnson 1, E. Johnson 1, and Litzen 1, these factors provided weak support for retaining the positions in the general government unit.

c. Other working conditions.

The two Johnsons and Litzen have both different and shared working conditions with other members of the general government unit. The working conditions that differ are related to the supervisory and management duties of these three employees, all of whom are responsible for supervising subordinates. Their subordinates do not supervise any employees. Exh. 1, at 6, N. Johnson 1; Exh. 1, at 7, E. Johnson 1; Exh. 1 at 10, Litzen 1.

N. Johnson is responsible as statewide environmental coordinator to train and implement new procedures to comply with federal environmental laws. Among other things, N. Johnson is required to check his subordinate's work, set priorities, approve leave, evaluate performance, discipline, hire, and adjudicate grievances. Exh. 3, N. Johnson 1. In contrast, his subordinate, Otto, is responsible for underground storage tanks. Despite the fact that they both work in environmental law, N. Johnson's duties are substantially different from Otto's due to N. Johnson's supervisory responsibilities.

As technical engineer II, E. Johnson is responsible for the administrative management of the testing and quality control section and pavement management system. He maintains standards for the materials that are incorporated into all DOT & PF projects. His subordinates are responsible for various components of the overall program. Exh. 1, at 3, E. Johnson 1. E. Johnson is responsible to train, direct, hire, suspend, promote, schedule, set priorities, evaluate, discipline, settle grievances, and approve leave requests for subordinates. Exh. 1, at 4; Exh. 3, E. Johnson 1. His subordinates do not perform these duties because they do not supervise employees. Exh. 1, at 7, E. Johnson 1. Johnson also prepares the budget for the testing/quality control section. Exh. 1, at 4, E. Johnson 1.

Litzen, a natural resource manager I, is responsible for the management and supervision of the southcentral regional office.

Her supervisory duties include appointing, promoting, reprimanding, evaluating, and training employees. She is responsible to adjudicate grievances, assign work, approve leave and time sheets, set priorities and goals, and write program guidelines. Exh 1, at 6, Litzen 1. Litzen also conducts the final review of water permits prepared by subordinates and signs them. Exh. 1, at 4, Litzen 1. Her subordinates do not perform these duties.

The two Johnsons and Litzen share similar working conditions with their subordinates because they all perform some of the same program work that their subordinates perform. The three supervisors generally perform more complex program work, however. Another similarity is that their offices are located in close proximity to their subordinates.

The differences in the working conditions outweigh the similarities. This factor supports placing the three positions in the supervisory unit.

d. History of collective bargaining.

The specific positions occupied by Litzen and the two Johnsons were in the general government unit until 1995, when they were moved to the supervisory unit after the decisions were issued in N. Johnson 1, E. Johnson 1, and Litzen 1. The history of collective bargaining for these positions favors placing them in the general government unit.

e. Desires of the employees.

The desires of these three employees vary. N. Johnson prefers to be in the supervisory unit because he likes the personal leave system. He believes that it discourages the use of sick leave. E. Johnson's preference is unknown. Litzen testified that she has no preference regarding bargaining units and that she is not a union person. N. Johnson's preference supports placing his position in the supervisory unit. Because E. Johnson's preference is not known, this factor goes against the State, which has the burden of proof. Litzen does not have a preference. Therefore, this factor does not support placing her position in either the supervisory or general government unit.

f. Unnecessary fragmenting.

The petitions for these three employees only shift the employees from one bargaining unit to another; they do not increase the number of bargaining units. We have found that under such facts fragmentation is not an issue. Public Safety Employees Ass’n v. State of Alaska, Decision & Order No. 187, at 13 (May 25, 1995), aff’d No. 3AN-95-5208-CI (Oct. 14, 1996); Public Safety Employees Ass'n, Inc. and Alaska Public Employees Ass'n, SLRA Order & Decision No. 106, at 6 (May 14, 1987). Therefore, this factor does not favor placing the positions in either the supervisory or general government unit.

In weighing the criteria under AS 23.40.090 that the State must prove to move the positions occupied by N. Johnson, E. Johnson, and Litzen to the supervisory unit, on balance the factors demonstrate that the positions are appropriately in the supervisory unit. The community of interest that these three employees share with other State supervisors due to their supervisory responsibilities under 8 AAC 97.990(a)(5) is what distinguishes them from other State employees. This significant factor requires placing these three positions in the supervisory unit. The differences in these employees' working conditions also support placing their positions in the supervisory unit. The factors wages and hours provide weak support for placing the positions in the supervisory unit. N. Johnson's preference for the supervisory unit also supports placing his position in the supervisory unit. Another factor, the prohibition against unnecessary fragmentation, is not an issue in these cases because a new unit is not being created. All three employees are supervisors under 8 AAC 97.990(a)(5). They have authority to act or effectively recommend action in the interest of the State in a manner demonstrating independent judgment in at least one of the supervisory functions in the regulation. See discussion infra, subsection C.11.

10. Under 8 AAC 97.990(a)(5), what does "authority to act or to effectively recommend action in the interest of the public employer" mean?

The language "authority to act or to effectively recommend action in the interest of the public employer" is found in the supervisory regulation, 8 AAC 97.990(a)(5). See discussion supra, subsection C.6. In the first three decisions issued since 8 AAC 97.990(a)(5) was adopted, we established a two-part test for determining supervisory status, stating,

[T]o be a supervisor under 8 AAC 97.990(a)(5), two standards must be met. First, the employer must have conferred on an employee the authority to act or effectively recommend action in any one of the three following supervisory functions: employing, discipline, or grievance adjudication. Second, the employee must exercise independent judgment in performing the function when the opportunity arises.

State of Alaska v. Alaska State Employees Ass'n, Decision & Order No. 194, at 6; State of Alaska v. Alaska State Employees Ass'n, Decision & Order No. 196, at 6; State of Alaska v. Alaska State Employees Ass'n, Decision & Order No. 198, at 6.

ASEA argues that mere possession of authority is insufficient and exercise of the authority is required before an employee can be a supervisor under 8 AAC 97.990(a)(5). However, the plain language of 8 AAC 97.990(a)(5) does not require an employee to exercise authority before the employee can be a supervisor under the regulation. We addressed this subject in Decision & Order No. 194, stating,

To require exercise of authority first would exclude from the supervisory unit those supervisors who, but for lack of opportunity, share a community of interest with other supervisors. We also agree with the State that it would place supervisors in a potential conflict by retaining them in a unit with the employees over whom they have supervisory authority.

In a diverse, statewide workforce there may be a large range in numbers of employees supervised by individual supervisors. Vacancies may occur more frequently in some units than others. Certain employees may require discipline while others never do. Some work environments may lead to large numbers of grievances and no grievances may be filed in others. These many variables may result in many, few, or no opportunities to perform one or more of the three supervisory functions. Despite these possible differences, the common thread uniting supervisory employees is the conferred authority to act in the employer's interest in performing hiring, discipline, or grievance-adjudication functions when the need arises.

State of Alaska v. Alaska State Employees Ass'n, Decision & Order No. 194, at 7. The actual possession of authority is what is important. This position is consistent with federal law. See discussion supra, subsection C.6.c. The language in 8 AAC 97.990(a)(5) that describes authority is similar to the language that describes authority in the NLRA definition of "supervisor." See discussion supra, p. 14. Under the NLRA, possession of authority is sufficient to make an employee a supervisor. A treatise about the NLRA states that "The mere possession of authority, rather than the exercise of authority, is sufficient to create supervisory status. Of course, the actual exercise of supervisory authority constitutes the most effective evidence that it exists." 1 Ralph F. Abbot, Jr., et al., National Labor Relations Act: Law & Practice, § 2.03[3], at 2-18 (1996). The key is authority, not its exercise.

ASEA argues that authority to effectively recommend action cannot be established unless there is a record that an employee's recommendations in the supervisory functions have been accepted by the employee's supervisor. This is another way of saying that authority must be exercised before an employee can be a supervisor under 8 AAC 97.990(a)(5). However, we have determined that exercise of authority is not required before an employee can be a supervisor under the regulation. An employee who has not had an opportunity to make a recommendation is no different from an employee who has not had an opportunity to act in at least one of the three supervisory functions in the regulation. Once opportunity arises to recommend action, an employee's recommendations can be shown to be effective if they are usually followed. If the facts were to demonstrate that an employee did not exercise the authority to act or recommend action when the occasion arose, or if the employee's supervisor frequently overturned the employee's actions or disregarded recommendations, the employee's authority would be at issue and we might view the matter differently. However, there is no evidence that the State routinely grants authority to employees without expecting that it will be exercised when the opportunity arises.

Two of the ways that authority can be established are through testimony or documentation. The exercise of authority is the best evidence of it but other evidence can prove up authority. Testimony about the exercise of authority in the supervisory functions in 8 AAC 97.990(a)(5), the employee's understanding of his or her authority, or the supervisor's testimony of conferral or delegation of authority are ways that authority can be established through testimony.

Documentation can establish authority to act or recommend action. A completed position description questionnaire (PDQ) can provide information about authority possessed or exercised by employees. Exh. 1, N. Johnson 1; Exh. 1, E. Johnson 1; Exh. 1, Litzen 1. Among other things, the PDQ asks the employee to rate his or her level of authority to perform supervisory duties for all positions that the employee directly supervises. The employee attests to the accuracy of the statements on the PDQ by signing his or her name after the statement "I certify that the above statements are accurate and complete to the best of my knowledge." Sections 28 and 29 of the PDQ contain a space for the employee's supervisor and the division director or designee to sign confirming that the employee's statements on the PDQ are accurate. Certification by the personnel office or department is optional.

Another document that can establish authority under 8 AAC 97.990(a)(5) is the supervisory responsibilities questionnaire. Exh. 3, N. Johnson 1; Exh. 3, E. Johnson 1; Exh. 3, Litzen 1. This questionnaire consists of four pages of questions about the employee's supervisory responsibilities, which both the employee and the employee's supervisor sign.

Yet another document that could tend to show or prove authority is the formal delegation of authority under AS 39.25.020 and 2 AAC 07.999(1). AS 39.25.020 provides in part that "The authority to appoint to positions in the state service is as follows: (2) the governor is the appointing authority for all officers and employees of the executive branch, but the authority to make all appointments may be delegated." Under 2 AAC 07.999(1), "'appointing authority' means the official to whom appointing authority has been assigned or delegated under AS 39.25.020."

ASEA argues that a position must be designated as an "appointing authority" under AS 39.25.020 and 2 AAC 07.999(1) in order for the position to have authority under 8 AAC 97.990(a)(5). However, the plain language of 8 AAC 97.990(a)(5) does not require that an employee be an appointing authority under 2 AAC 07.999(1) in order to have authority "to act or effectively recommend action" in at least one of the three supervisory functions. The regulation does not specify how the authority is to be acquired; it only requires that it exist.

This position is consistent with the SLRA's decision in Order and Decision No. 64. At that time, the regulation defining supervisory employee, 2 AAC 10.220(b)(3) required supervisors to have "substantial responsibility" to participate in the supervisory functions. The SLRA found that lack of delegated authority under the State's policies and procedures did not preclude subordinates from having "substantial responsibility" to regularly participate in performance of supervisory functions. See Re: Unit Clarification 80-15, SLRA Order & Decision No. 64, at 2-4.

ASEA also argues that an employee cannot have authority if the employee has to obtain advance approval for any of a variety of reasons, including legislative funding of positions, hiring only from approved lists, obtaining budgetary approval from the commissioner to fill a vacant position, or consulting with a human resource manager prior to taking disciplinary action. The issue is whether limiting the supervisor's discretion prevents an employee from being a supervisor under 8 AAC 97.990(a)(5). The regulation does not require an employee to have complete discretion in every aspect of the employing, disciplining, or grievance adjudication functions to be a supervisor under 8 AAC 97.990(a)(5). For example, the fact that the legislature appropriates money for State positions, a commissioner gives budgetary approval to fill vacant positions, a director endorses an action, employees in another section of State government compile lists of available and qualified candidates, an employee with the title "appointing authority" signs a document pertaining to an employment action, or an employee voluntarily informs a supervisor before taking an action, does not significantly limit the employee's discretion in the employing function. The employee who actually conducts interviews, checks applicants' references, and decides which applicant has the best skills for the job exercises significant discretion and authority in the employer's interest in the employing function. By conferring authority on an employee to employ, the employer relies on the employee to ask nondiscriminatory questions during employment interviews, base the selection on appropriate criteria, know and follow contractual provisions, and hire an individual who will be a good investment for the employer's expenditure of funds. In contrast, sufficient authority to employ under 8 AAC 97.990(a)(5) would not exist if an employee merely conducted preliminary interviews for a supervisor and the supervisor then decided which applicant to hire.

A similar analysis is appropriate for the discipline function. An employee who investigates a disciplinary matter, consults personnel in the human resource office, and decides what discipline to impose after being advised of options by the human resource professional exercises sufficient discretion in the discipline function to meet the requirements of the regulation. On the other hand, if an employee were to investigate a disciplinary matter and report the findings to the supervisor, and the supervisor then decided what action to take, the employee would not exercise sufficient discretion in the discipline function.

Yet another ASEA argument is that employees' possible motives to become members of the supervisory unit should be considered. Motive is not a factor under 8 AAC 97.990(a)(5) and will not be addressed.

In sum, exercise of authority to supervise in one of the functions in the regulation is not required if the opportunity has not arisen; the grant of the authority to supervise is sufficient under 8 AAC 97.990(a)(5); authority can be established through testimony or documentation; an employee need not be an "appointing authority" under 2 AAC 07.999(1) to be a supervisor under 8 AAC 97.990(a)(5); and reasonable limitations to an employee's exercise of discretion do not prevent an employee from being a supervisor under the regulation.

11. Do the positions at issue have "authority to act or to effectively recommend action in the interest of the public employer" in a manner demonstrating the exercise of independent judgment in at least one of the supervisory functions in 8 AAC 97.990(a)(5)?

In the first hearings to determine the appropriate bargaining unit for N. Johnson, E. Johnson, and Litzen, we determined that each of these individuals had authority to act or effectively recommend action in at least one of the three supervisory functions in the regulation. Although there have been some changes in the employment situations of these three employees, the changes do not reduce their authority to perform the supervisory functions in 8 AAC 97.990(a)(5). A change that affects all three positions is the removal of the general government unit contract bar, which had prevented these employees from adjudicating first level grievances while their positions were in the general government unit. The contract bar was removed when the positions were moved to the supervisory unit after the first decisions were issued in 1995. However, no grievances have been filed that these three employees are responsible to adjudicate, even though they possess the requisite authority.

a. Nathan Johnson

N. Johnson is now supervised by Loren Rasmussen, the acting director of Engineering and Operations at DOT/PF. In the employing function, Rasmussen stated that N. Johnson has authority to work the register, write letters to the applicants, identify the person that he wants to hire, and offer the successful applicant the job. N. Johnson does not need to check with Rasmussen before preforming these functions, although budget considerations always exist. Rasmussen also expects N. Johnson to transfer employees, lay employees off, decide if a position needs to be left vacant based on the funding resources available to him, and discipline employees. If the need to discharge an employee arose, Rasmussen expects N. Johnson to make the decision and check with the appropriate resources to insure that everything is being handled appropriately. Rasmussen stated that the need to discharge rarely arises. Rasmussen relies heavily on N. Johnson's judgment. N. Johnson testified that he had not discussed his authority to discharge, suspend, issue a written warning, or adjudicate a grievance with his new supervisor, Rasmussen, and therefore he did not know if it had changed. N. Johnson believes that he has the authority that is listed on his PDQ.

The definitions printed on the PDQ provide two choices for describing the level of authority an employee has to perform a list of supervisory tasks: "recommend" and "authority." "Recommend" means "make suggestion(s) to your supervisor - your supervisor decides what action is necessary." "Authority" means "decide what action is necessary." Exh. 1, at 6, N. Johnson 1. N. Johnson's PDQ lists his responsibility for "Appoint, Promote, Transfer, Suspend, Discharge," and "Grievances" as "authority." Exh. 1, at 6, N. Johnson 1. N. Johnson did not review any policy and procedure manuals or State laws prior to filling out his PDQ or supervisory responsibilities questionnaire. He completed these two documents based on the authority that he understood himself to have to perform the functions listed. The director of Engineering and Operations concurred with N. Johnson's answers on the PDQ by signing the certification on the PDQ. Exh. 1, at 8, N. Johnson 1. N. Johnson's supervisory responsibilities questionnaire is also signed by a supervisor. Exh. 3, at 4, N. Johnson 1.

PDQ's are the documents that are used customarily to initiate transfers of positions from one bargaining unit to another. Mike McMullen, personnel manager of the Division of Personnel in the Department of Administration, testified about the procedure that his staff uses to review bargaining unit placement issues. McMullen stated that the classification staff reviews PDQ's in conjunction with the most recent definition of "supervisory employee" and the organizational chart that is submitted with the PDQ. If the PDQ is filled out thoroughly, additional documentation is not required. If additional information is needed, a supplemental form, the supervisory responsibilities questionnaire, is completed. Classification staff also review the materials that the departments submit and consider the departments' arguments. McMullen does not believe that the classification staff reviews the PDQ in conjunction with the Personnel Policies and Procedures Manual to insure that the PDQ is consistent with the manual. McMullen believes that if the PDQ were signed by someone other than an authorized person, the signature would be accepted as authoritative. McMullen indicated that the PDQ is generally the document that the departments use to delegate authority and it is the document upon which his staff relies. McMullen does not know if departments issue other types of delegations of authority. Desk audits are not conducted routinely as part of the bargaining unit transfer review process. At the conclusion of the review process, the classification staff initiates change actions and communicates with the unions.

N. Johnson's authority to perform the supervisory functions in the regulation is derived from his PDQ, supervisory responsibilities questionnaire, and the authority that his supervisors have conferred on him. This is sufficient to meet the requirements of 8 AAC 97.990(a)(5). See discussion supra, subsection C.10. Neither N. Johnson or Rasmussen know who has authority under the laws of the State to hire, transfer, suspend, or discharge employees. Neither of them know if N. Johnson is an "appointing authority" as defined in 2 AAC 07.999(1). Rasmussen does not know if he himself is an appointing authority. Rasmussen has not signed any paperwork delegating authority to N. Johnson to perform the supervisory functions in the regulations because he believes that the current PDQ is sufficient.

ASEA argues that N. Johnson must be an "appointing authority" under 2 AAC 07.999(1) and that delegations of authority must be in compliance with the State Policy and Procedure Manual, as well as the Department of Transportation Policy Manual. We have already determined that it is not necessary to be an "appointing authority" under 2 AAC 07.999(1) and that the authority to perform the supervisory functions in the regulation can be established in a variety of ways, including the PDQ, supervisory responsibilities questionnaire, or the testimony of the employee or the employee's supervisor. See discussion supra, subsection C.10. The testimony of N. Johnson and Rasmussen, the PDQ, and the supervisory responsibilities questionnaire establish N. Johnson's authority to act or effectively recommend action in the employing, disciplining, and grievance adjudication functions. Supervisory status is not determined solely on the basis of authority delegated in conformity with the State's policies and procedures manuals. See Re: Unit Clarification 80-15, SLRA Order & Decision No. 64, at 2-4. The actual conferral of authority is what is important. Therefore, we reject ASEA's argument.

The limits placed on N. Johnson's discretion, such as selecting an individual from a list of applicants prepared by someone else, consulting a human resource professional to make sure that all steps are followed in a discipline matter, or deciding whether to leave a position vacant or hire the one person on a layoff list, do not substantially limit his authority in the employing and discipline functions.

N. Johnson still has not had an opportunity to perform any of the three supervisory functions in 8 AAC 97.990(a)(5). He supervises one employee, who was in the position at the time N. Johnson became the statewide environmental coordinator. N. Johnson has exercised independent judgment in handling the only discipline-related issue that has arisen. Finding of fact no. 18, N. Johnson 1.

ASEA argues that it is inappropriate for N. Johnson to be in the supervisory unit because he has not spent any time performing the supervisory functions in the regulation. The fact that he has not had an opportunity to act or effectively recommend action in any of the three supervisory functions does not prevent him from being a supervisor under the regulation. See discussion supra, subsection C.10; conclusions of law no. 7-10, N. Johnson 1. The possession of authority is the determining factor.

N. Johnson stated that he has not experienced any conflicts of interest with his subordinate since he has been supervising him, either while N. Johnson was in the general government unit or since his position has been transferred to the supervisory unit. However, conflicts of interest are inherent when supervisory personnel and nonsupervisory personnel are combined in the same unit. See discussion supra, subsections C.5.b. & c. and C.6.b.

In sum, although authority to act or effectively recommend action is only required in one of the three functions in the regulation, N. Johnson is a supervisor under 8 AAC 97.990(a)(5) because he has authority to act or effectively recommend action in the three supervisory functions in the regulation. He has exercised independent judgment in handling the only discipline-related matter that has arisen.

b. Eric Johnson

E. Johnson's duties have not changed significantly since the first hearing. Although he hires and supervises an additional four interns for the summer months, these individuals are not State employees. Therefore, these additional supervisory duties are not relevant to this decision.

After the first hearing, E. Johnson clarified his authority with his supervisor, Tony Barter. E. Johnson stated that if he were to complete the supervisory responsibilities questionnaire now, the answers to the first six questions would be different: they would be answered with the number one instead of number two. The first six questions involve appointing, promoting, transferring, suspending, and discharging employees and adjudicating employees' grievances. Exh. 3, at 1-2, E. Johnson 1. "One" defines the level of authority as "I take personnel actions without being required to inform my supervisor in advance." "Two" defines the level of authority as "I decide what personnel actions to take. My supervisor may change or overturn my action." An authority level rating of "one" is consistent with the authority that Barter stated E. Johnson possessed at the first hearing. Findings of fact nos. 13, 18, 23, & 24, E. Johnson 1.

E. Johnson must obtain budgetary approval from the Commissioner's office and Barter before he can fill a vacant position. See finding of fact no. 14, E. Johnson 1. However, this does not substantially limit his authority in the employing function. See discussion supra, subsection C.10. E. Johnson has exercised his authority to employ while in this position by hiring Robert Gartin in November of 1994. Finding of fact no. 16, E. Johnson 1. He exercised independent judgment when hiring Gartin. Conclusion of law nos. 7 & 8, E. Johnson 1. This is the only opportunity that has arisen to perform one of the three supervisory functions in the regulation.

E. Johnson's authority to perform the supervisory functions in the regulation is derived from the PDQ, supervisory responsibilities questionnaire, his understanding of his authority, the authority that his supervisors have conferred on him, and his exercise of authority in the employing function. E. Johnson has authority to act or effectively recommend action in the interest of the State in at least one of the three supervisory functions in 8 AAC 97.990(a)(5). See discussion supra, subsection C.10.

When E. Johnson filled out his PDQ and supervisory responsibilities questionnaire, he did not consult the Personnel Policies and Procedure Manual or determine if the PDQ was in compliance with the laws of the State of Alaska. He has not received a specific delegation of authority to appoint, other than the authority that is delegated on the PDQ. ASEA argues that E. Johnson must be an "appointing authority" under 2 AAC 07.999(1) and that delegations of authority must be in compliance with the State Personnel Policies and Procedures Manual. We have already considered and rejected this argument. See discussion supra, subsections C.10 and 11.a.

E. Johnson has not experienced any conflicts of interest with subordinates caused by his unit placement in either the general government or the supervisory unit. The fact that an actual conflict has not yet been demonstrated does not reduce the inherent conflict of interest that occurs when supervisory and nonsupervisory personnel are combined in the same unit. See discussion supra, subsection C.11.a.

In sum, although authority to act or effectively recommend action is only required in one of the three functions in the regulation, E. Johnson is a supervisor under 8 AAC 97.990(a)(5) because he has authority to act or effectively recommend action in the three supervisory functions in the regulation. He exercised independent judgment in hiring Gartin when the opportunity arose.

c. Kellie Litzen

Litzen's duties have not changed substantially since the first hearing, although she spends less time supervising. The unit that Litzen supervises has been reduced due to budget cuts. Two positions have been eliminated. She now supervises the position occupied by Buz Kuby and she shares supervisory responsibility for the jointly funded position occupied by Carol Compton. This change is not significant because the amount of time spent supervising is not relevant under 8 AAC 97.990(a)(5).

Litzen's level of authority has not changed since the first hearing. She has authority to act in the employing and grievance functions and to recommend action in the discipline function. Finding of fact nos. 10, 14, & 17, Litzen 1. She must check with her supervisor, Gary Prokosch, to see if there is money in the budget to fill a vacant position. This does not significantly limit her discretion in the employing function. Finding of fact no. 10, Litzen 1; see discussion supra, subsection C.10. Litzen has exercised her authority to employ in a manner demonstrating independent judgment by hiring Buz Kuby. Finding of fact nos. 10, 11, & 12, Litzen 1.

Litzen also used independent judgment when she handled the only discipline-related matter that has arisen. Finding of fact no. 16, Litzen 1.

Litzen's authority to perform the supervisory functions in the regulation is derived from the PDQ, supervisory responsibilities questionnaire, her understanding about her authority, the authority that Prokosch has conferred on her, and the authority that she exercised in hiring Kuby. Litzen has authority to act or effectively recommend action in the State's interest in at least one of the three supervisory functions in the regulation.

When Litzen completed the PDQ and supervisory responsibilities questionnaire, she did not check any manuals or laws to determine if these documents were in compliance with State Personnel Policies and Procedures or laws. ASEA argues that Litzen must be an appointing authority under 2 AAC 07.999(1). We reject this argument for the reasons stated previously.

In sum, although authority to act or effectively recommend action is only required in one of the three functions in the regulation, Litzen is a supervisor under 8 AAC 97.990(a)(5) because she has authority to act or effectively recommend action in the three supervisory functions in the regulation. She exercised independent judgment in hiring Kuby when the opportunity arose.

12. Can a person who only supervises one or two employees be a supervisor under 8 AAC 97.990(a)(5)?

8 AAC 97.990(a)(5) does not restrict the number of employees who must be supervised in order for an employee to meet the supervisory requirements in the regulation. A person can be a supervisor if he or she supervises one or two employees as long as the conditions in 8 AAC 97.990(a)(5) are met.

Because State employees work in communities of varying sizes throughout the State of Alaska under a variety of working conditions, it is not reasonable to create an inflexible, artificial barrier that disrupts the community of interest that all State supervisors share. If there were a supervisor for every general government employee, we might view the matter differently. However, this simply is not the case. When the supervisory and general government units are considered in their entirety, the overall ratio of supervisors to general government workers is approximately one to eight. The parties stipulated that there are about 1000 supervisory employees and 8,500 general government unit employees. This ratio is not unreasonable.

Conclusions of Law

We supplement the conclusions of law in N. Johnson 1, E. Johnson 1, and Litzen 1 with the following conclusions of law.

1. The burden of proof has not changed as a result of the remand. The State, as petitioner, has the burden of proof under 8 AAC 97.350(f).

2. The issue of whether Art Chance can represent the State in the remand hearing has been waived.

3. There is no contract bar to the petitions under AS 23.40.100(e) because there was no collective bargaining agreement in effect when the petitions were filed. The Agency is not prohibited from considering these three unit clarification petitions.

4. The parties' tentative agreement, reached before the effective date of the extension of the expired 1990 - 1992/93 agreement, does not bar the Agency from considering these three unit clarification petitions.

5. The Agency may not declare a regulation invalid in the adjudication of a case. Regulations must be adopted and repealed under the Administrative Procedure Act.

6. 8 AAC 97.090(a)(1) is valid. The regulation was adopted pursuant to statutory authority, is not unreasonable, and is in accord with the terms and purposes of the statutes pursuant to which it was adopted.

7. 8 AAC 97.990(a)(5) is valid. The regulation was adopted pursuant to statutory authority, is not unreasonable, and is in accord with the terms and purposes of the statutes pursuant to which is was adopted.

8. The separation of supervisory personnel from nonsupervisory personnel at the state level only does not violate Executive Order No. 77.

9. The parties, through their collective bargaining agreement, cannot bind the Agency to the application of particular regulations or statutes in a unit clarification proceeding.

10. The ASEA/State agreement does not require the application of the former definition of "supervisory employee" in 2 AAC 10.220(b)(3).

11. On balance, under AS 23.40.090, we conclude that the positions occupied by N.Johnson, E. Johnson, and Litzen are more like the positions in the supervisory unit than the general government unit. The factors community of interest and working conditions strongly support placing the positions in the supervisory unit.

12. Application of the factor "the desires of the employees" results in different outcomes for each employee. The evidence of the desires of N. Johnson supports placing his position in the supervisory unit. Evidence of the desires of the remaining two employees was insufficient to allow a conclusion in either case.

13. The contract for the unit that the employees are placed in governs the wages and hours. We are unable to compare the general government and supervisory unit agreements because they were not submitted, and we are unable to draw a conclusion based on a comparison. Nonetheless, because the positions are now in the supervisory unit, the similarity in wages and hours that the three positions share with other members of the supervisory unit provides somewhat weak support for retaining the positions in the supervisory unit.

14. The factor prohibiting unnecessary fragmentation is not an issue in these cases because a new unit is not being created.

15. Under 8 AAC 97.990(a)(5), evidence of PDQ's and supervisory responsibilities questionnaires, and the testimony of the incumbents and their supervisors is sufficient to support the conclusion that these employees have "authority to act or to effectively recommend action in the interest of the public employer."

16. An employee does not need to be an "appointing authority" under 2 AAC 07.999(1) to be a supervisor under 8 AAC 97.990(a)(5).

17. Such limitations on supervisory authority as requiring conformance with legislative budgetary requirements or personnel rules do not preclude an employee from being a supervisor under 8 AAC 97.990(a)(5).

18. 8 AAC 97.990(a)(5) does not establish a minimum number of employees who must be supervised before an employee can be a supervisor.

19. On the basis of the foregoing, we conclude that the three employees are supervisors under the regulation due to their authority to employ, discipline, and adjudicate grievances. Although adequate authority is only required in one of the three functions, each of these employees possesses adequate authority in all three functions.

ORDER

1. We grant the State of Alaska's petitions and order that the statewide environmental coordinator, PCN 25-0180, and the technical engineer II/architect II, PCN 25-0235, at the Division of Engineering and Operations in the Department of Transportation and Public Facilities, and the natural resource manager I, PCN 10-1274, at the Division of Mining and Water Management in the Department of Natural Resources, remain in the supervisory unit where they were placed after decision and orders numbered 194, 196, and 198 were issued.

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

ALASKA LABOR RELATIONS AGENCY

______________________________

Alfred L. Tamagni, Sr., Chair

______________________________

Raymond P. Smith, Board Member

APPEAL PROCEDURES

This order is the final decision of this Agency. Judicial review may be obtained by filing an appeal under Appellate Rule 602(a)(2). Any appeal must be taken within 30 days from the date of filing or distribution of this decision.

CERTIFICATION

I hereby certify that the foregoing is a full, true and correct copy of the order in the matter of STATE OF ALASKA V. ALASKA STATE EMPLOYEES ASSOCIATION/AFSCME LOCAL 52, AFL-CIO, AND ALASKA PUBLIC EMPLOYEES ASSOCIATION/AFT, AFL-CIO, dated and filed in the office of the Alaska Labor Relations Agency in Anchorage, Alaska, this 27th day of May, 1997.

Margie Yadlosky

Administrative Assistant

This is to certify that on the 27th day of May, 1997, a true and correct copy of the foregoing was mailed, postage prepaid to

Don Clocksin, ASEA

Jim Gasper, APEA

Kent Durand, State

Signature

¹For convenience, references to exhibits, findings of fact, and conclusions of law from the first hearings will be identified by adding N. Johnson 1, E. Johnson 1, or Litzen 1 after the designations exhibit, findings of fact, and conclusions of law.

²Before July 1, 1990, the Department of Administration, State Labor Relations Agency, administered the Public Employment Relations Act for the State. On July 1, 1990, the Alaska Labor

Relations Agency assumed administration of the Act for the State, municipalities and school districts. Executive Order No. 77 (eff. July 1, 1990).

³In SLRA Order and Decision No. 121, the SLRA stated that "as a threshold minimum, supervisory employees must supervise more than two subordinates . . . ." Public Safety Employees Ass'n v. Alaska

State Employees Ass'n, SLRA Order and Decision No. 121, at 4 (emphasis added)(Aug. 28, 1989). The next decision that established a minimum number of subordinates to be supervised was Order and Decision No. 123. This Order and Decision stated that supervision of "at least two subordinates" was required. Alaska State Employees Ass'n v. Alaska Public Employees Ass'n, SLRA Order & Decision No. 123, at 6 (emphasis added). Thus, the threshold minimum changed from a number greater than two, presumably three, to two. We note that the definition of supervisory employee in 2 AAC 10.220(b)(3) does not set out the minimum number of employees who must be supervised.

⁴2 AAC 10.110(a)(1) provided "At the state level, a proposed bargaining unit is not considered an appropriate bargaining unit if

it combines supervisory personnel with nonsupervisory personnel." (Eff. 10/24/72, Reg. 44; am 6/17/74, Reg. 50)

⁵In Decision & Order No. 144, we rejected the percentage of time test that had been established by the SLRA because "we do not find in the regulation defining 'supervisory employee' language that requires a supervisor to spend a certain percentage of time performing supervisory duties. 2 AAC 10.220(b)(3). Measuring regular performance by this artificially precise method could exclude genuine supervisors who have a community of interest with other supervisors under AS 23.40.090." State of Alaska v. Public

Employees Local 71, Decision & Order No. 144, at 14, aff'd No. 1JU-92-2105-CI (Feb. 15, 1994). We rejected the percentage of time test before we adopted the "supervisory employee" definition in 8 AAC 97.990(a)(5).

⁶The second part of 8 AAC 97.090 requires the separation of State confidential employees from other State employees. Because ASEA has not asked the Agency to declare 8 AAC 97.090(a)(2) invalid and the record does not contain information regarding confidential employees, the second part of the regulation will not be addressed.

⁷AS 42.40.820 pertains to the Alaska Railroad Corporation and will not be addressed here.

⁸AS 42.40.820 also authorizes 8 AAC 97.990(a)(5). It will not be addressed because it pertains to the Alaska Railroad Corporation.

⁹The language in AS 23.40.090 is "other working conditions of the employees involved," not "terms and conditions of employment" as ASEA argues in its motion to declare regulations invalid, at 14 (July 24, 1996).

¹⁰Some distinctions between groups of employees have a legislative origin. For example, the legislature authorizes different treatment for political subdivision employees. It allows political subdivisions to reject PERA. Section 4, ch. 113, SLA 1972.

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