CASE NO. 96-453-UC (96-475-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
ALASKA STATE EMPLOYEES ASS’N/ )
AFSCME LOCAL 52, AFL-CIO, )
(Douglas B. Molyneaux, PCN 11-1296, )
Scott A. McPherson, PCN 11-4032), )
)
Petitioner, )
)
vs. )
)
STATE OF ALASKA, DEPARTMENT )
OF FISH & GAME, )
Respondent, )
and )
)
ALASKA PUBLIC EMPLOYEES ASS’N/ )
AFT, AFL-CIO, )
Intervenor. )
_____________________________________)CASE NO. 96-453-UC (96-475-UC Consol.)
DECISION AND ORDER NO. 225
Digest: The bargaining unit placement of two fishery biologists III positions, PCN 11-1296 and PCN 11-4032, 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 two fishery biologists III positions in the Department of Fish and Game, Division of Commercial Fisheries Management and Development and Division of Sport Fish, after the State of Alaska notified that it intended to move the positions 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. On December 7, 1995, Alfred L. Tamagni, Sr., chair, and board members James W. Elliott and Raymond P. Smith were assigned to decide the case. On December 18, 1995, ASEA moved for a stay of the proceedings. The State and Alaska Public Employees Association/AFT, AFL-CIO (APEA) both opposed the motion. The hearing officer on January 4, 1996, ordered the hearings postponed. The State on February 15, 1996, filed a motion to dismiss these petitions or in the alternative to obtain a hearing. ASEA opposed the motion on February 27, 1996. On March 7, 1996, the hearing officer denied the motion to dismiss and granted the request for hearings.
The case was consolidated for hearing with 95-426-UC, 96-458-UC, 96-469-UC, 96-470-UC, 96-473-UC, 96-474-UC, and 96-475-UC and heard on April 29, 1996, through April 30, 1996, before Hearing Officer Jean Ward. The record closed on April 30, 1996.
On June 18, 1997, the Agency amended the panel assignment to substitute board member Robert A. Doyle for member James W. Elliott.
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 Dennis Geary, business agent, for intervenor Alaska Public Employees Association/AFT, AFL-CIO.
Issue
1. Is the appropriate unit for two fishery biologists III positions, PCN 11-1296 and PCN 11-4032, the supervisory unit or the general government unit?
Summary of the Evidence
A. Exhibits.
The parties agreed to the admission of the following joint exhibits, which were admitted into the record, and the materials in the case file on the issue of the unit placement of PCN 11-1296 and PCN 11-4032:
J1. Extract, State and ASEA collective bargaining agreement (1990-1992/93) (recognition clause);
J2. Letter of agreement extending the ASEA collective bargaining agreement (July 1, 1995--June 30, 1996);
J3. Extract, State and APEA collective bargaining agreement (Dec. 1, 1995-June 30, 1996) (recognition clause);
J4. Letter of agreement extending the APEA collective bargaining agreement (until June 30, 1995); and
J5. Class specification for fishery biologist III.
Respondent State of Alaska offered the following exhibit, which was admitted into the record:
A. 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.
Douglas Brian Molyneaux, incumbent in PCN 11-1296; Lawrence S. Buklis, supervisor of Molyneaux; Scott A. McPherson, incumbent in PCN 11-4032; Rolland Arthur Holmes, regional supervisor of the research coordination section where McPherson is employed.
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 filed on April 15, 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. 3 AN 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). We rely on those cases and do not repeat their discussion here. At the hearing, ASEA made an argument that was not clear concerning the burden of proof. To the extent that ASEA’s argument was to move the burden of proof from the petitioner, it is denied.
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. J1 & J2.
2. The Alaska Public Employees Association/AFT, AFL-CIO (APEA) is the recognized bargaining representative of the supervisory unit of State of Alaska employees. Exh. J3.
3. The positions of fishery biologist III at issue are in the Department of Fish and Game, Division of Commercial Fisheries Management and Development and Division of Sport Fish.
Douglas Brian Molyneaux, incumbent in PCN 11-1296:
4. Douglas Brian Molyneaux, incumbent in PCN 11-1296, formerly was a fishery biologist II, which has been in the general government unit.
5. On June 17, 1995, the division’s AYK regional research biologist sought the reclassification of the position to a fishery biologist III in the supervisory unit. L. Buklis, memorandum to B. Clasby (June 17, 1995). The justification was the expansion of responsibilities. Id.
6. On September 29, 1995, the State notified ASEA that the fishery biologist III position PCN 11-1296 was more appropriately in the supervisory unit.
7. The supervisory responsibilities questionnaire for PCN 11-1296 shows that Molyneaux independently takes personnel action for five or six employees without being required to inform his supervisor in advance in areas of appoint, promote, and transfer. Supervisory responsibilities questionnaire for PCN 11-1296, at 1 (Aug. 17, 1995).
8. His supervisor, Larry Buklis, confirmed Molyneaux’s authority to act independently in the employing function.
9. The supervisory responsibilities questionnaire for PCN 11-1296 shows that
Molyneaux has authority to discharge or suspend six positions. He is not required to check with his supervisor to discharge but he believes his supervisor could change or overturn a decision to suspend. Id., at 2.
10. Buklis has never overturned Molyneaux’s decisions in employing or discipline functions.
11. Molyneaux has discharged one state employee. He first discussed the range of options available with Lynn Ate, human resource manager, and then independently decided to discharge the employee. Molyneaux informed his supervisor as a courtesy after he made the decision.
12. The supervisory responsibilities questionnaire for PCN 11-1296 shows that
Molyneaux has authority to settle or decide grievances from six positions without being required to inform his supervisor in advance. Id. However, Buklis stated that the ASEA contract prevents Molyneaux from resolving general government unit grievances as long as his position is located in the same bargaining unit.
13. The positions Molyneaux supervises are a fishery biologist I, a fish and wildlife technician III, two fish and wildlife technicians II, and two fish and wildlife technicians I. Position description questionnaire (PDQ) PCN 11-1296, at 6 (Aug. 31, 1995).
14. Molyneaux supervises fish and wildlife technicians during the summer months when his duty station is in Bethel. He employs and lays off seasonal staff each year; he hires all of his subordinates. He has promoted employees on three occasions. He was not required to confer before making the promotion but as a courtesy he discussed the action with Buklis.
15. Molyneaux has employees under his supervision approximately three quarters of the year. In additional to the summer seasonal employees, he supervises a fishery biologist I from approximately May through December. After Molyneaux was reclassified to a fishery biologist III, the four-month period from January through April was the longest time that Molyneaux did not have a subordinate to supervise.
16. The position description describes the essential functions of this fishery biologist position as technical support for fisheries management through use of computerized data; supervision of crew leaders and participation in field projects for the management of the Kuskokwim Area fishery, writing annual reports summarizing results of projects, writing procedural manuals and such administrative duties as employee hiring and evaluation, among others. Id., at 2-3.
17. Molyneaux wrote the PDQ and believes it adequately and accurately represents his duties.
18. Molyneaux believes that his position should be in the supervisory unit due to his supervisory responsibilities and he prefers to be in the supervisory unit.
Scott Alan McPherson, incumbent in PCN 11-4032:
19. Scott Alan McPherson, PCN 11-4032, is a fishery biologist III. The position has been located in the general government unit.
20. Previously the position had been a fishery biologist II. It was reclassified to a fishery biologist III in 1993. The reason for the reclassification was the expansion of responsibility.
21. On September 20, 1995, the department’s personnel specialist II sought to move the position to the supervisory unit. E. Williams, memorandum to P. Judson (Sept. 20, 1995). The justification was that this class of employee supervises technical or clerical staff and that this position was responsible to "design, plan, implement and supervise a major fisheries research program . . . ." Id.
22. On October 10, 1995, the State notified ASEA that the fishery biologist III position PCN 11-4032 was more appropriately in the supervisory unit.
23. The supervisory responsibilities questionnaire for PCN 11-4032 shows that McPherson takes personnel action for a number of employees (six employees according to the organizational chart) without being required to inform his supervisor in advance in areas of appoint, promote, transfer, discharge, suspend, and settling or deciding grievances. Supervisory responsibilities questionnaire for PCN 11-4032 (Sept. 15, 1995). It also shows that he can take these same actions with regard to a fishery biologist II except that his supervisor could change or overturn his decision. Id.
24. McPherson directly supervises a fishery biologist II, four fishery biologists I, and a fish and wildlife technician III. The fishery biologists also supervise and McPherson indirectly supervises their subordinates. Position description questionnaire PCN 11-4032, at 10 (Sept. 20, 1995).
25. McPherson’s supervisory responsibility varies with the season. He supervises one employee year round and another employee for 11 months of the year. He hired one of these employees as a transfer, PCN 11-1863. Other employees he may supervise for two to six months per year.
26. McPherson estimates that he may spend 25-30 percent of his time in personnel matters.
27. McPherson provided a number of instances in which he had exercised his authority to appoint, transfer, promote, and discipline, including discharge. He hires the lower level positions himself without discussing his decision with his supervisor. When he hires for a fishery biologist I or II position, he discusses the matter with his supervisors and makes a recommendation. He has made two such recommendations and his supervisors have followed both of them.
28. McPherson’s immediate supervisor is Steven Elliott, a fishery biologist IV. Id.
29. The regional supervisor, Rocky Holmes, confirmed McPherson’s authority to hire. McPherson hires fish and wildlife technicians without talking with Holmes. When McPherson hires fishery biologists, he decides whom he wants to hire and advises Holmes of his decision and the reasons for it. Holmes has never overturned a decision that McPherson has made.
30. When hiring, McPherson decides what questions to ask at interviews. He conducts interviews himself, but has administrative staff prescreen applicants. Holmes has not changed any of McPherson’s questions, but he has suggested some additional ones.
31. Holmes wants to be kept advised of disciplinary action but has never overturned McPherson’s personnel actions.
32. The position description questionnaire, which McPherson wrote in 1995, describes the essential functions of this fishery biologist position as designing, budgeting, and planning a large salmon stock assessment program in southeast Alaska. McPherson is responsible for purchasing, hiring and other logistical responsibilities, monitoring the projects, adjusting sampling strategies, placing equipment, and scheduling personnel. He analyzes and reports the findings, among other duties. Id., at 3.
33. McPherson prefers 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.
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. 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 .
Douglas Brian Molyneaux, incumbent in PCN 11-1296:
5. Molyneaux, incumbent in PCN 11-1296, has the authority to act in the interest of the State in the areas of employing, discipline, and grievance adjudication.
6. Molyneaux exercises independent judgment in the areas of employing and discipline when the opportunity arises.
7. Under the definition of "supervisory employee" in 8 AAC 97.990(a)(5), PCN 11-1296 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 11-1296 shares with other members of the supervisory unit.
10. Employee preference supports placing PCN 11-1296 in the supervisory unit.
11. Because PCN 11-1296 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.
12. The absence of supervisory duties for four months of the year does not preclude Molyneaux’s position from being placed in the supervisory unit. He has sufficient supervisory authority during the remainder of the year to be a supervisor under 8 AAC 97.990(a)(5).
Scott Alan McPherson, incumbent in PCN 11-4032:
13. McPherson, incumbent in PCN 11-4032, has the authority to act in the interest of the State in the areas of employing and grievance adjudication.
14. McPherson exercises independent judgment in employing when the opportunity arises.
15. McPherson has the authority to effectively recommend action in the interest of the State in the area of discipline.
16. McPherson exercises independent judgment in the area of discipline when the opportunity arises.
17. Under the definition of "supervisory employee" in 8 AAC 97.990(a)(5), PCN 11-4032 is a "supervisory employee."
18. This supervisory responsibility provides a greater community of interest with the supervisory unit than the general government unit.
19. These supervisory duties are significant working conditions that PCN 11-4032 shares with other members of the supervisory unit.
20. Employee preference under AS 23.40.090 supports placing the position in the supervisory unit.
21. Because PCN 11-4032 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 Alaska State Employees Association/AFSCME Local 52, AFL-CIO to declare the fishery biologists’ III PCN 11-1296 and PCN 11-4032 appropriately in the general government unit is DENIED;
2. The fishery biologists’ III PCN 11-1296 and PCN 11-4032 are 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 v. STATE OF ALASKA, DEP’T OF FISH & GAME, (Douglas B. Molyneaux, PCN 11-1296 & Scott A. McPherson, PCN 11-4032) and ALASKA PUBLIC EMPLOYEES ASS’N/AFT, AFL-CIO, Case No. 96-453-UC (96-475-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
Dennis Geary, APEA
Signature
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