CASE NO. 95-425-UC (96-454-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 NO. 95-425-UC (96-454-UC Consol.)

DECISION AND ORDER NO. 224

Digest: The bargaining unit placement of the cartographer III position in the Department of Transportation & Public Facilities, PCN 25-0147, is appropriately in the supervisory bargaining unit represented by the Alaska Public Employees Association/AFT, AFL-CIO.

DECISION

Statement of the Case

On June 30, 1995, the State of Alaska filed this petition to clarify the bargaining unit status of a cartographer III in the Department of Transportation & Public Facilities. 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. Alaska State Employees Association/AFSCME Local 52, AFL-CIO (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 96-442-UC, and 96-463-UC, and heard on April 1, 1996. The record closed that same day.

On July 19, 1995, the panel assigned was Alfred L. Tamagni. Sr., chair, and board members James W. Elliott and Raymond P. Smith. On December 7, 1995, the Agency amended the panel assignment to substitute board members Robert A. Doyle and Karen J. Mahurin for members James W. Elliott and Raymond P. Smith. 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 Robert A. Doyle and Raymond P. Smith, 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 Joan Wilkerson, business agent, for intervenor Alaska Public Employees Association/AFT, AFL-CIO (APEA).

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

Issue

1. Is the appropriate unit for the cartographer III position, located in the Department of Transportation & Public Facilities, Division of Planning, 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 25-0147 were the following:

1. Position description questionnaire for PCN 25-0147 (Oct. 31, 1994);

2. D. Hull, memorandum to J. Rider, DOT (Dec. 1, 1994) (seeking determination whether change to supervisory unit is appropriate);

3. State supervisory responsibilities questionnaire (Dec. 30, 1995);

4. State class specification, cartographer III;

5. DOT & PF organization chart for division of planning, (Sept. 1, 1994);

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

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

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

P8. Arts. 1 & 2, APEA and State collective bargaining agreement (Dec. 1, 1995--June 30, 1996) (definition of terms and recognition) (admitted over objection);

P9. APEA and State letter of agreement, contract extension (July 1, 1995--June 30, 1996) (admitted over objection);

P10. In re Alaska State Employees Ass’n, AFSCME Local 52, AFL-CIO and State of Alaska, Opinion and Award (Mar. 26, 1996) (Arb. Dorsey).

B. Testimony.

Kerry Kirkpatrick, the incumbent, and Thomas B. Brigham, the director of the planning division of the Department of Transportation and Public Facilities, testified.

C. Agency case file. 8 AAC 97.410.

Preliminary Matter

On March 4, 1996, ASEA filed a statement of issues that included a list of 14 legal issues. Some of the issues were not developed in any meaningful way. Those issues that ASEA did not pursue seriously or support with any authorities or policy are considered abandoned. ASEA expanded on several of the legal issues in its brief on March 18, 1996. These issues were 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 Alaska State Employees Ass’n/AFSCME Local 52, AFL-CIO (Fantazzi) v. State, Decision & Order No. 223 (Aug. 7, 1997). ASEA also filed four motions, which were addressed in Alaska State Employees Ass’n/AFSCME Local 52, AFL-CIO (Fantazzi) v. State, Decision & Order No. 223, at 1 & 5-7. We rely on those cases and do not repeat their discussion here.

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. 6 & 7.

2. Alaska Public Employees Association/AFT, AFL-CIO (APEA) is the recognized bargaining representative of the supervisory unit of State of Alaska employees. Exhs. P8 & P9.

3. The position at issue in this case is located in the Juneau office of the statewide division of planning, Department of Transportation & Public Facilities, and is in the general government unit. Exh. 1.

4. The incumbent in PCN 25-0147 is Kerry Shawn Kirkpatrick. Exh. 1, at 1.

5. On December 1, 1994, a personnel specialist advised that the duties of the position were more appropriately a cartographer III than the current classification of cartographer II and that the position would be reviewed for bargaining unit placement. Exh. 2, at 6. The ASEA protested the change on February 2, 1995, and the State filed this petition.

6. The cartographer III according to the class specification is responsible for supervising large and complex mapping and graphic assignments through the work of at least two subordinate employees. Exh. 4.

7. This cartographer III position supervises the statewide mapping section and is responsible to conceive, design, and implement cartographic projects and to provide mapping for the department. Exh. 1, at 3. Kirkpatrick supervises two positions and has the authority to appoint, promote, transfer, approve leave, complete performance evaluations, assign and check work, instruct or train, and set priorities and work schedules for the two positions. Id., at 7.

8. Kirkpatrick completed a supervisory questionnaire in which he assessed his supervisory duties. This document indicates that he can decide what personnel action to take regarding appointing, promoting, transferring, suspending, discharging, settling grievances, and extending probationary periods for the two positions under his control but his supervisor can change or overturn his action. He has authority without providing advance notice to his supervisor to perform such other activities as approving leave, completing evaluations, assigning work, checking work, setting priorities, developing training, as well as other activities directing the work. Exh. 3.

9. As a cartographer III, Kirkpatrick hired Gary Rhemsberg and informed his supervisor of his decision as courtesy. He hired two other subordinates while his position was classified as a cartographer II.

10. Brigham confirmed Kirkpatrick’s authority in the employing area. Brigham does not expect Kirkpatrick to come to him or to Kirkpatrick’s immediate supervisor, Jeff Otterson, before Kirkpatrick hires an employee.

11. The cartographer III position has the authority to act in the interest of the State in the area of employing.

12. The authority to employ is not merely routine, but requires the exercise of independent judgment when the opportunity arises to employ, as demonstrated by his supervisory responsibilities questionnaire, Exh. 3, and the experience he has had in hiring the employees he supervises.

13. The position description questionnaire (PDQ) lists Kirkpatrick’s authority to suspend, discharge, and handle grievances as the authority to recommend, which the PDQ defines as "make suggestion(s) to your supervisor--your supervisor decides what action is necessary." Exh. 1, at 3 & 7. This level of authority is inconsistent with the level of authority listed in the supervisory responsibilities questionnaire.

14. Kirkpatrick testified that he has the authority to discipline, but that his supervisor can overturn his decision.

15. Brigham expects Kirkpatrick to exercise his authority to discipline when needed. If a discipline matter required immediate action, Brigham would expect Kirkpatrick to act without consulting his supervisor. If the matter could wait, Brigham would expect Kirkpatrick to discuss the matter with his supervisor.

16. The authority to discipline is not commonly exercised. Kirkpatrick has not had any opportunity to demote, discharge, or issue written warnings.

17. On the basis of Kirkpatrick and Brigham’s testimony concerning Kirkpatrick’s level of authority, we find that Kirkpatrick has the authority to act or to effectively recommend action in the interest of the State in the area of discipline.

18. Kirkpatrick has authority to act in the interest of the State in the area of grievance adjudication, but no grievances have been filed.

19. Although the PDQ shows that Kirkpatrick spends 25 percent of his time performing supervisory duties, we find Kirkpatrick’s testimony that he spends at least half of his time performing supervisory and administrative duties more persuasive and so find. Administrative duties include inventory and reporting responsibilities.

20. The hours that Kirkpatrick works are similar to those worked by his subordinates.

21. Kirkpatrick performs mapping duties that are similar to those performed by his subordinates approximately fifty percent of the time.

22. Kirkpatrick’s subordinates do not supervise any subordinates.

23. This exercise of supervisory responsibility provides a conflict of interest between the planner III position and the two employees Kirkpatrick supervises and provides a greater community of interest with the supervisory unit than the general government unit.

24. These supervisory duties are significant working conditions that this position shares with other members of the supervisory unit.

25. Kirkpatrick believes the position belongs in the supervisory unit because he assumed the supervisory duties of a position that was in the supervisory unit. He appears to prefer to be in the supervisory 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 State, 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. 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.

5. Kirkpatrick, the incumbent in PCN 25-0147, has the authority to act or effectively recommend action in the interest of the State in the areas of employing, discipline, and grievance adjudication.

6. Kirkpatrick exercises independent judgment in the area of employing when the opportunity arises.

7. Under the definition of "supervisory employee" in 8 AAC 97.990(a)(5), PCN 25-0147 is a "supervisory employee."

8. This supervisory responsibility provides a greater community of interest with the supervisory unit than the general government unit.

9. These supervisory duties are significant working conditions that PCN 25-0147 shares with other members of the supervisory unit.

10. Employee preference supports placement in the supervisory unit.

11. Because the cartographer III position is a "supervisory employee" 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, and under AS 23.40.090, we conclude the appropriate bargaining unit is the supervisory unit.

ORDER

1. The petition of the State of Alaska to declare the cartographer III PCN 25-0147 appropriately in the supervisory unit is GRANTED;

2. The cartographer III PCN 25-0147 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 STATE OF ALASKA, DEPARTMENT OF ADMINISTRATION, (Kerry Kirkpatrick, PCN 25-0147) v. ALASKA STATE EMPLOYEES ASS’N/AFSCME LOCAL 52, AFL-CIO and ALASKA PUBLIC EMPLOYEES ASS’N/AFT, AFL-CIO, Case No. 95-425-UC (96-454-UC Consol.), dated and filed in the office of the Alaska Labor Relations Agency in Anchorage, Alaska, this 8th day of August, 1997.

Cindy Teter

Administrative Clerk III

This is to certify that on the 8th day of August, 1997, a true and correct copy of the foregoing was mailed, postage prepaid to

Stan Hafferman, ASEA

Kent Durand, State

Mila Doyle, APEA

Signature

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