CASE NO. 96-470-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

CASE NO. 96-470-UC (96-475-UC Consol.)

DECISION AND ORDER NO. 227

Digest: The bargaining unit placement of a fishery biologist III position, PCN 11-1210, is appropriately in the supervisory bargaining unit represented by the Alaska Public Employees Association/AFT, AFL-CIO.

DECISION

Statement of the Case

On November 13, 1995, the Alaska State Employees Association/AFSCME Local 52, AFL-CIO (ASEA) filed this petition to clarify the bargaining unit status of a fishery biologist III position in the Department of Fish and Game, Division of Commercial Fisheries Management and Development, 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. 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 hearing 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, 96-453-UC, 96-458-UC, 96-469-UC, 96-473-UC, 96-474-UC, and 96-475-UC and heard on 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 a fishery biologist III position (PCN 11-1210) the supervisory unit or the general government unit?

Summary of the Evidence

A. Exhibits.

The parties presented the following joint exhibits, which were admitted into the record:

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 (Jan. 20, 1995).

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) (Dorsey, Arb.).

B. Testimony.

The parties did not call any witnesses.

C. Agency case file. 8 AAC 97.410.

Preliminary Matter

On March 4, 1997, 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. 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). 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. 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 position of fishery biologist III at issue, PCN 11-1210, is in the Department of Fish and Game, Division of Commercial Fisheries Management and Development.

4. John Wilcock, the incumbent in PCN 11-1210, has been in the general government unit.

5. On March 30, 1995, the Department’s personnel specialist sought bargaining placement review of PCN 11-1210. K. Capp, memorandum to L. Ate (Mar. 30, 1996). The position, which is located in Cordova, was described as responsible for all of the basic, ongoing research projects related to herring and salmon management concerns (e.g. catch sampling, forecasting, aerial survey data base management, inseason data analysis, etc.). This position coordinates research sampling needs and resources with PCN 117019 and works closely with the area management biologists in providing them with the biological data necessary to make and defend fisheries management decisions.

Id., at 2.

6. On October 13, 1995, the department’s personnel specialist sought to move the position to the supervisory unit. E. Williams, memorandum to P. Judson (Oct. 13, 1995). The justification provided was that "our analysis indicates the appropriate bargaining unit for PCN 11-1210 should be Supervisory." Id.

7. October 26, 1995, the State notified ASEA that the fishery biologist III position PCN 11-1210 was more appropriately in the supervisory unit. P. Judson, letter to G. Masten (Oct. 26, 1995).

8. The supervisory responsibilities questionnaire for PCN 11-1210 shows that Wilcock has appointing authority for one employee (PCN 11-1337) and actively participates in the appointments made by subordinate employees. Wilcock described his level of authority as "?." The number 1 means that the employee can take personnel action without being required to inform a supervisor in advance. The number 2 means that the employee can decide what action to take but a supervisor may change or overturn the action. Wilcock indicated that he had appointed one employee since 1993 and participated in the appointment of seven employees. Supervisory responsibilities (Aug. 28, 1995). Wilcock described his authority to promote as "1(2)" and his authority to transfer as "1."

9. Wilcock also described his authority to suspend employees as "?." Id. Wilcock indicated he has not suspended any employees.

10. Wilcock described his authority to discharge as "2." Wilcock indicated he has not discharged any employees. Id.

11. The supervisory responsibilities questionnaire for PCN 11-1210 shows that Wilcock has authority in the area of settling grievances. Wilcock can take action without being required to inform his supervisor in advance. Id.

12. The positions Wilcock supervises are a fishery biologist II, PCN 11-1337; a fishery biologist I, PCN 11-1671; a fish and wildlife technician III, PCN 11-1496; and a fish and wildlife technician II, PCN 11-1571. Three of these employees are seasonal. Wilcock may also supervise three employees through his subordinates. Position description questionnaire for PCN 11-1210, at 6 (Mar. 24, 1995).

13. The position description questionnaire describes Wilcock’s level of authority as authority to appoint, transfer, discharge, handle grievances. He has the authority to recommend promotion and suspension. "Recommend" is defined as "make suggestion(s) to your supervisor--your supervisor decides what action is necessary." Id.

14. The position description describes the essential functions of this fishery biologist position as including the responsibility to Plan, supervise, evaluate, and conduct studies concerning management of Prince William Sound Pacific herring and salmon stocks. This includes planning and conducting field studies as well as evaluating and synthesizing available information in a manner that can be used to set spawning goals, assess pre- and inseason abundance, and determine harvest strategies.

Id., at 3. 25 percent of Wilcock’s work time is dedicated to the responsibility to Direct, supervise, and evaluate personnel. This includes directing work assignments and schedules; evaluating performance; hiring, terminating, and suspending employees after receiving regional approval.

Id.

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.

5. Wilcock, incumbent in PCN 11-1210, has the authority to effectively recommend action in the interest of the State in the area of employing.

6. Wilcock, incumbent in PCN 11-1210, has the authority to effectively recommend action in the interest of the State in the area of disciplining.

7. Wilcock, incumbent in PCN 11-1210, has the authority to act in the interest of the State in the area of grievance adjudication

8. Under the definition of "supervisory employee" in 8 AAC 97.990(a)(5), PCN 11-1210 is a "supervisory employee."

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

10. These supervisory duties are significant working conditions that PCN 11-1210 shares with other members of the supervisory unit.

11. Because PCN 11-1210 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 biologist III PCN 11-1210 appropriately in the general government unit is DENIED;

2. The fishery biologist III PCN 11-1210 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, (John Wilcock, PCN 11-1210) v. STATE OF ALASKA, DEPARTMENT OF FISH & GAME and ALASKA PUBLIC EMPLOYEES ASS’N/AFT, AFL-CIO, Case No. 96-470-UC (96-475-UC Consol.), dated and filed in the office of the Alaska Labor Relations Agency in Anchorage, Alaska, this 12th day of August, 1997.

Cindy Teter

Administrative Clerk III

This is to certify that on the 12th 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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