CASE NO. 96-454-UC

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

CASE NO. 96-454-UC

DECISION AND ORDER NO. 223

Digest: The bargaining unit placement of the planner III position in the Department of Transportation & Public Facilities, PCN 25-1356, is appropriately in the supervisory bargaining unit represented by the Alaska Public Employees Association/AFT, AFL-CIO.

DECISION

Statement of the Case

On October 19, 1995, the Alaska State Employees Association/AFSCME Local 52, AFL-CIO (ASEA) filed this petition to clarify the bargaining unit status of planner III PCN 25-1356 in the Department of Transportation and Public Facilities, Division of Planning and Administration, after the State of Alaska notified that it intended to move the position to the supervisory bargaining unit. On December 7, 1995, Alfred L. Tamagni, Chair of the Alaska Labor Relations Agency, delegated the authority to hear the case to the hearing officer. ASEA moved to stay the petition on December 18, 1995, and the hearing officer denied the motion on January 4, 1996. On February 15, 1996, the State filed a notice of objection and a motion to dismiss. The hearing officer denied the motion on March 6, 1996. ASEA moved to place the burden of proof on the party proposing the bargaining unit transfer on March 13, 1996. The hearing officer denied the motion on March 27, 1996. The case was consolidated for hearing with 95-425-UC, 96-442-UC, and 96-463-UC, and heard on April 2, 1996. The record closed on April 5, 1996, with the receipt of joint exhibit Q.

On June 18, 1997, the Agency amended the panel assignment to substitute board member Raymond P. Smith for member Karen J. Mahurin.

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

Appearances: Stan Hafferman, business agent, for petitioner Alaska State Employees Association/AFSCME Local 52, AFL-CIO; Art Chance, labor relations specialist, for respondent State of Alaska; and Bob Watts, business agent, for intervenor Alaska Public Employees Association/AFT, AFL-CIO.

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

Issues ¹

1. Whether moving persons and positions from the general government unit to the supervisory unit violates the merit system of employment.

2. Whether 8 AAC 97.990(a)(5), which defines "supervisory employee," impairs the ASEA and State collective bargaining agreement in violation of Article 1, Section 15, of the Alaska Constitution.

3. Whether the severance factors in 8 AAC 97.025(b) apply to this unit clarification petition.

4. Whether a bargaining unit change interferes with employees’ rights under AS 23.40.080.

5. Whether the appropriate unit for the planner III position PCN 25-1356 located in the Department of Transportation and Public Facilities, Division of Planning and Administration, is the supervisory unit or the general government unit.

Summary of the Evidence

A. Exhibits.

The parties agreed to the admission of joint exhibits. Relevant to the issue of the unit placement of PCN 25-1356 were the following:

A. Position description questionnaire PCN 25-1356 (April 4, 1995);

B. D. Hull, memorandum to J. Rider, HRM, DOT (seeking determination whether change to supervisory unit is appropriate) (Sept. 18, 1995);

C. State, supervisory responsibilities questionnaire (April 4, 1995);

D. State, class specification, planner III;

E. DOT & PF, organization chart for planning and administrative services, northern region (Oct. 1995);

K. Art. 1, ASEA and State collective bargaining agreement (1990--1992-93) (recognition);

L. ASEA and State letter of agreement #95-GG-030 re: interim terms (July 1, 1995--June 30, 1996);

M. Arts. 1 & 2, APEA and State collective bargaining agreement (Dec. 1, 1995--June 30, 1996) (definition of terms and recognition);

N. APEA and State letter of agreement, contract extension (July 1, 1995--June 30, 1996);

O. DOT & PF, organization chart for planning and administrative services, northern region (April 1995);

P. P. Judson, letter to G. Masten (Sept. 29, 1995) (regarding change to S.U.);

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

B. Testimony.

Beverly Nice Fantazzi, the incumbent, and Michael D. Gavin, the incumbent’s immediate supervisor, testified.

C. Agency case file. 8 AAC 97.410.

Findings of Fact

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

1. The Alaska State Employees Association/AFSCME Local 52, AFL-CIO (ASEA) is the recognized bargaining representative of the general government unit of State of Alaska employees. Exhs. K & L.

2. Alaska Public Employees Association/AFT, AFL-CIO (APEA) is the recognized bargaining representative of the supervisory unit of State of Alaska employees. Exhs. M & N.

3. The position planner III PCN 25-1356 is located in the northern regional office in the Department of Transportation and Public Facilities, Division of Planning and Administration, and is in the general government unit. Exh. A.

4. The incumbent in PCN 25-1356 is Beverly Nice Fantazzi. Id.

5. On September 29, 1995, the State advised that the duties of the position were supervisory and it would be moving the position to the supervisory unit fifteen days from ASEA’s receipt of the notice. Exh. P. The ASEA protested the change and filed this petition.

6. Fantazzi manages the traffic data and forecasting section for the northern region. The PDQ shows that she supervises three employees and has full authority to appoint, promote, transfer, handle grievances, approve leave, complete performance evaluations, assign and check work, instruct or train, and set priorities and work schedules for the three positions. Exh. A, at 2 & 6.

7. The PDQ describes her authority to suspend or discharge as the authority to recommend, which is defined as "make suggestion(s) to your supervisor--your supervisor decides what action is necessary." Id., at 6.

8. Before suspending or discharging an employee, Fantazzi decides what action to take, discusses it with her supervisor and someone from personnel, and then takes the action.

9. Fantazzi completed a supervisory questionnaire in which she assessed her supervisory duties. She believes she has the authority to appoint employees, which she does by using the open competitive, interdepartmental, or departmental registers. Exh. C, at 1. She interviews the applicants and selects the best one for the job. She believes she has the authority to regularly promote employees from other departments, divisions, and sections of her work unit. She can arrange transfers. All of these actions can be taken without informing her supervisor.

10. Fantazzi believes that she may decide to suspend or discharge an employee but her supervisor may change or overturn her decision. Id.

11. Fantazzi’s supervisor, Mike Gavin, expects Fantazzi to notify him as a courtesy if she plans to suspend or discharge an employee and to check with personnel to make sure that she is doing everything correctly. He does not believe that he would overrule her decision to suspend or discharge.

12. The planner III PCN 25-1356 has the authority to act in the interest of the State in the area of employing. Exhs. B & C.

13. The authority to employ is not merely routine, but requires the exercise of independent judgment when the opportunity arises to employ, as demonstrated by her PDQ, Exh. B, her supervisory responsibilities questionnaire, Exh. C, and the experience she has had in hiring the employees she supervises.

14. The planner III position has at least the authority to effectively recommend action in the interest of the State in the area of discipline. Id.

15. The authority to discipline is not commonly exercised. Fantazzi has not demoted, discharged or issued written warnings in the last five years but she understands she has the authority to discipline if appropriate.

16. The incumbent Fantazzi estimates that she spends 25 percent of her time in management or supervisory duties. During certain times of the year, she spends 25 percent of the time supervising and an additional 5 percent performing managerial duties. During the off-season, she spends a total of 25 percent of the time both supervising and managing.

17. Fantazzi believes the position belongs in the supervisory unit and never should have been placed in the general government unit.

Discussion

1. Whether moving persons and positions from the general government unit to the supervisory unit violates the merit system of employment.

On March 13, 1996, ASEA moved the Agency to determine whether the State’s proposed unit transfers violate the merit system of employment under the Alaska Constitution and the Public Employment Relations Act (PERA). The State opposed the motion.

PERA in AS 23.40.070(3) requires that the merit system of employment be maintained. PERA also requires the Agency to determine appropriate bargaining units. AS 23.40.090. Pursuant to that authority the Agency sets unit boundaries initially and determines appropriate placement of positions in existing units. It addresses disputes over the appropriate placement of positions in existing units through unit clarification proceedings under 8 AAC 97.050. The long history of unit clarification proceedings when supervisory status is disputed appears in State v. Alaska State Employees Ass’n/AFSCME Local 52, AFL-CIO, Decision & Order No. 219, at 9-15 (May 27, 1997) appeal pending No. 3AN-95-9083 CI (Super. Ct., filed June 15, 1997). These proceedings should not conflict with merit system principles because they do not determine or affect how an employee is selected to fill the position that is the subject of a unit clarification petition.

ASEA, however, argues that a transfer to the supervisory unit is a promotion and a use of the "spoils" system of employment. ASEA has not supported its argument with any facts or elaborated on how a unit change could conflict with the merit principles; and we cannot imagine any. We can only assume that the incumbents of the positions that are the subject of these unit clarification petitions were appointed under the merit system because ASEA has not provided any facts or argument to support a different conclusion.

Because the merit system of employment and procedures to clarify bargaining units do not conflict in any way, we are not required to address the effect of such a conflict. ASEA’s motion is denied.

2. Whether 8 AAC 97.990(a)(5), which defines "supervisory employee," impairs the ASEA and State collective bargaining agreement in violation of Article 1, Section 15, of the Alaska Constitution.

On March 13, 1996, ASEA moved the Agency to declare 8 AAC 97.990(a)(5) invalid because it defines "supervisory employee" in a manner that conflicts with the collective bargaining agreement and therefore violates Article 1, Section 15, of the Alaska Constitution. This section of the Alaska Constitution prohibits any laws "impairing the obligation of contracts" among other things. The flaw in ASEA’s argument is the assumption that the collective bargaining agreement conflicts with the regulation. There is no conflict because the agreement relies on this Agency’s determinations in its article addressing recognition and classification. See discussion, Exh. Q, at 14-18. The motion is denied.

3. Whether the severance factors in 8 AAC 97.025(b) apply to this unit clarification petition?

In its brief ASEA argues that, before a position can transfer to the supervisory unit, the severance factors in 8 AAC 97.025(b) must be satisfied. 8 AAC 97.025(b) applies to representation petitions in which the petitioner seeks to sever a group of employees from an existing bargaining unit. Those petitioners must satisfy the requirements of 8 AAC 97.025(b) and state,

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

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

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

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

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

However, ASEA has not filed a representation petition to sever a group of employees from its own bargaining unit. Instead, ASEA has filed a petition to clarify the bargaining unit after the State advised that Fantazzi’s position belonged in the supervisory unit. The parties’ collective bargaining agreement requires ASEA to file a unit clarification petition with this Agency if ASEA does not agree with the State’s proposed move of a bargaining unit position to another unit. It is important to note that, under 8 AAC 97.050(a)(1), a unit clarification petition may not raise a question of representation. No one disputes that ASEA represents the general government unit and APEA represents the supervisory unit. This petition to clarify the bargaining unit for Fantazzi’s position does not raise a question of representation and the severance factors in 8 AAC 97.025(b) therefore do not apply.

4. Whether a bargaining unit change interferes with employees’ rights under AS 23.40.080?

ASEA argues that by moving Fantazzi’s position from the general government unit to the supervisory unit the State is interfering with the employees’ right under AS 23.40.080 to chose their own bargaining representative. ASEA claims that, when the general government unit employees voted to decertify APEA and to select ASEA as their representative, the employees chose ASEA. Moving the positions (and necessarily the employees occupying the positions) to the supervisory unit represented by APEA ignores that choice in violation of the principle of self-determination in AS 23.40.080.

The Agency addressed this issue in Public Safety Employees Ass’n v. State of Alaska, Decision & Order No. 201, at 10 (April 4, 1996). The Agency found that the labor organization in that case,

confuse[d] the issue of freedom of choice of a bargaining representative with the issue of the appropriateness of the unit. The appropriateness of the unit is a responsibility of the Agency. Employees have an important stake in the outcome of that determination, as do any potential bargaining representatives and the employer. The Agency is charged with taking the employees’ preference into account in the initial unit determination. After the determination is made, the employees exercise the right to choose a bargaining representative in an election and the majority of those voting control the outcome.

Id. Moving a position from one bargaining unit to another one does not interfere with the employees’ right to choose a bargaining representative under AS 23.40.080. Employees choose their representatives, not their bargaining unit. The Agency under AS 23.40.090 determines the appropriate unit.

Conclusions of Law

1. The State of Alaska is a public employer under AS 23.40.250(7), and the Alaska State Employees Association/AFSCME Local 52, AFL-CIO, and the Alaska Public Employees Association/AFT, AFL-CIO are organizations under AS 23.40.250(5). This Agency has jurisdiction under AS 23.40.090 to consider this matter.

2. The ASEA, as the petitioner, has the burden to prove each element of its case by a preponderance of the evidence. 8 AAC 97.350(f).

3. Under 8 AAC 97.090 a bargaining unit of State employees may not properly combine supervisory personnel with nonsupervisory personnel.

4. Moving persons and positions from the general government unit to the supervisory unit does not conflict with or violate the merit system of employment.

5. 8 AAC 97.990(a)(5), which defines "supervisory employee," does not impair the ASEA and State collective bargaining agreement in violation of Article 1, Section 15, of the Alaska Constitution.

6. The severance factors in 8 AAC 97.025(b) do not apply to a unit clarification petition.

7. A bargaining unit change as a result of a unit clarification petition does not interfere with employees’ rights under AS 23.40.080.

8. We have found a separate supervisory unit to be the appropriate unit for State employees who meet the definition of "supervisory employee" in 8 AAC 97.990(a)(5). State v. Alaska State Employees Ass’n/AFSCME Local 52, AFL-CIO, Decision & Order No. 219, at 15-17.

9. Under the definition of "supervisory employee" in 8 AAC 97.990(a)(5), the planner III PCN 25-1356 is a "supervisory employee" because she has been conferred the authority in the interest of the State to employ and has exercised that authority in a manner requiring the exercise of independent judgment.

10. The planner III PCN 25-1356 has at least the authority to recommend in the area of discipline although she does not often need to exercise it.

11. Because the planner III PCN 25-1356 is a "supervisory employee" under 8 AAC 97.990(a)(5) it shares a community of interest and working conditions with the supervisory unit despite its previous shared history and contract terms with the general government unit.

12. The severance factors in 8 AAC 97.025(b) do not apply to unit clarification petitions because unit clarification petitions cannot raise a question of representation. 8 AAC 97.050(a)(1).

13. Moving Fantazzi’s position from the general government unit to the supervisory unit does not violate employees’ rights to choose their bargaining representative under AS 23.40.080 because the Agency determines the appropriate bargaining unit under AS 23.40.090.

14. Under AS 23.40.090, we conclude the appropriate bargaining unit is the supervisory unit.

ORDER

1. The petition of the Alaska State Employees Association/AFSCME Local 52, AFL-CIO to declare the planner III PCN 25-1356 appropriately in the general government unit is DENIED;

2. The planner III PCN 25-1356 is appropriately in the supervisory unit; and

3. 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

Robert A. Doyle, Board Member

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 ALASKA STATE EMPLOYEES ASS’N/AFSCME LOCAL 52, AFL-CIO, (Beverly Nice Fantazzi, PCN 25-1356), STATE OF ALASKA, DEP’T OF TRANSPORTATION & PUBLIC FACILITIES and ALASKA PUBLIC EMPLOYEES ASS’N/AFT, AFL-CIO, Case No. 96-454-UC, dated and filed in the office of the Alaska Labor Relations Agency in Anchorage, Alaska, this 7th day of August, 1997.

Cindy Teter

Administrative Clerk III

This is to certify that on the 7th day of August, 1997, a true and correct copy of the foregoing was mailed, postage prepaid to

Stan Hafferman, ASEA

Kent Durand, State

Bob Watts, APEA

Signature

¹ASEA filed an extensive list of issues, which can be categorized as follows: not briefed or argued; argued previously and addressed in State v. Alaska State Employees Ass’n/AFSCME Local 52, AFL-CIO, Decision & Order No. 219 (May 27, 1997) appeal pending No. 3AN-95-9083 CI (Super. Ct., filed June 15, 1997); and new issues. Those issues not briefed or argued are considered waived. ASEA also filed a number of motions. We rely on Decision & Order No. 219 for those issues and motions addressed previously and do not repeat their discussion here. ASEA’s motion to apply the regulation defining "supervisory employee" that was in effect at the time the State and ASEA negotiated their first collective bargaining agreement is addressed in Decision & Order No. 219, at 39-40; the motion to determine whether supervisors can be in the same bargaining unit as persons supervised is addressed at Id., at 27.

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