CASE NO. 96-473-UC (96-475-UC Consol.)

ALASKA LABOR RELATIONS AGENCY
3301 EAGLE STREET, SUITE 208
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ANCHORAGE, ALASKA 99510-7026
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CASE NO. 96-473-UC (96-475-UC Consol.)

DECISION AND ORDER NO. 228

Digest: The bargaining unit placement of two fishery biologists III positions, PCN 11-5013 and PCN 11-4051, is appropriately in the supervisory bargaining unit represented by the Alaska Public Employees Association/AFT, AFL-CIO.

DECISION

Statement of the Case

On November 30, 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, Divisionof 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, 96-453-UC, 96-458-UC, 96-469-UC, 96-470-UC, 96-474-UC, and 96-475-UC and heard on May 2, 1996, through May 3, 1996, before Hearing Officer Jean Ward. The record closed on May 3, 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 Joan Wilkerson, business agent, for intervenor Alaska Public Employees Association/AFT, AFL-CIO.

Issue

1. Is the appropriate unit for two fishery biologists III positions, PCN 11-5013 and PCN 11-4051, 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.

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.).

Intervenor Alaska Public Employees Association/AFT, AFL-CIO, offered the following exhibit that was admitted into the record:

I-52. Alaska Public Employees Association/AFT, AFL-CIO v. Alaska State Employees Association, case no. S-7608 (Alaska Supreme Court, filed April 8, 1996) (petition for review) (admitted over objection).

B. Testimony.

Ronald P. Josephson, incumbent in PCN 11-5013, and Benjamin William Van Alen, supervisor of Josephson, testified. The parties did not present any testimony for PCN 11-4051.

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. Those 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 positions of fishery biologist III at issue are in the Department of Fish and Game. PCN 11-5013 is in the Division of Commercial Fisheries Management and Development, and PCN 11-4051 is in the Division of Sport Fish.

Ronald P. Josephson, incumbent in PCN 11-5013:

4. Ronald P. Josephson, incumbent in PCN 11-5013, has been a fishery biologist III in the general government unit since 1986.

5. On October 21, 1995, the department’s personnel specialist sought a bargaining unit review of the position. E. Williams, memorandum to P. Judson (Oct. 21, 1995).

6. On November 21, 1995, the State notified ASEA that the fishery biologist III position PCN 11-5013 was more appropriately in the supervisory unit. P. Judson, letter to C. O’Connell (Nov. 21, 1995).

7. The position description questionnaire (PDQ) was updated as part of the bargaining unit review. Position description questionnaire PCN 11-5013, at 1 (Oct. 18, 1995). Josephson states that it is substantially accurate.

8. The supervisory responsibilities questionnaire for PCN 11-5013 shows that Josephson takes personnel action for four employees without being required to inform his supervisor in advance in areas of appoint and transfer. Supervisory responsibilities questionnaire for PCN 11-5013, at 1 (Oct. 20, 1995). In the area of promote, Josephson may decide what personnel action to take but his supervisor may change or overturn his action. Id.

9. Josephson has appointed subordinate employees and, in one case, recommended a promotion (or reclassification) for Scott Kelly from a fishery biologist I to a fishery biologist II. Id.

10. The supervisory responsibilities questionnaire for PCN 11-5013 shows that

Josephson has authority to suspend all the employees in his unit without being required to inform his supervisor in advance. He has authority to discharge but his supervisor could change or overturn the decision. He has not ever exercised this authority. Id.

11. The supervisory responsibilities questionnaire for PCN 11-5013 shows that

Josephson has authority to settle or decide grievances from all the employees in his unit without being required to inform his supervisor in advance. He has not had any formal grievances filed. Id.

12. Josephson directly supervises four positions, three fishery biologists II, PCN 11- 5194, PCN 11- 1777, and PCN 11- 5008, and one fish and wildlife technician, PCN 11- 5238, and indirectly supervises five or six employees through his subordinates.

13. The assessment of Josephson’s supervisory authority in the PDQ is that Josephson has full authority to decide what action is necessary in all personnel acts listed for all four positions: appoint, promote, transfer, suspend, discharge, grievance, approve leave, complete performance evaluation, assign and check work, instruct/train, and set priorities and work schedules. Position description questionnaire PCN 11-5013, at 6.

14. Benjamin William Van Alen supervises Josephson. Van Alen expects Josephson to take whatever personnel action he deems appropriate and keep Van Alen informed.

15. In the PDQ, Josephson responded to the query, "What actions do you take or what decisions do you make on a regular basis without higher level approval" by stating:

The general goals and objective of projects are already approved, methods and timing are made without prior approval. Purchasing, deployment of staff, hiring and firing, field travel, budget tracking and expenditure of project moneys are made by me.

Position description questionnaire PCN 11-5013, at 7.

16. Josephson believes that he is a supervisor.

J. Douglas Jones, incumbent in PCN 11-4051:

17. J. Douglas Jones, incumbent in PCN 11-4051, is a fishery biologist III. The position has been located in the general government unit.

18. On September 26, 1995, the department’s personnel specialist sought a bargaining unit review of the position. E. Williams, memorandum to P. Judson (Sept. 26, 1995).

19. On November 21, 1995, the State notified ASEA that the fishery biologist III position PCN 11-4051 was more appropriately in the supervisory unit. P. Judson, letter to C. O’Connell (Nov. 21, 1995).

20. The supervisory responsibilities questionnaire for PCN 11-4051 shows that Jones takes personnel action for three employees 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 11-4051, at 1-2 (Oct. 13, 1995).

21. In the area of employing, Jones has appointed employees twice and promoted an employee on one occasion. Id.

22. Jones has not had the opportunity to exercise authority in the area of disciplining. Id.

23. Jones has been able to settle any problems informally and has not had to respond to a formal grievance. Id., at 2.

24. The assessment of Jones’s supervisory authority in the PDQ is that Josephson has full authority to decide what action is necessary in all personnel acts listed for all four positions: appoint, promote, transfer, suspend, discharge, grievance, approve leave, complete performance evaluation, assign and check work, instruct/train, and set priorities and work schedules. Position description questionnaire for PCN 11-4051, at 6 (Oct. 26, 1995).

25. Jones directly supervises a fishery biologist II, PCN 11-4501, and a fishery biologist I, PCN 11-4262. These employees also supervise and Jones indirectly supervises their subordinates, an additional 6 employees. Id., at 10.

26. Of the two employees Jones supervises directly, one is permanent and the second is seasonal. Id., at 3.

27. Jones estimates that supervisory duties account for five percent of his work time. 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.

Ronald P. Josephson, incumbent in PCN 11-5013:

5. Josephson, incumbent in PCN 11-5013, has the authority to act in the interest of the State in the area of employing and has exercised independent judgment in employing.

6. Josephson has the authority to act in the interest of the State in the area of discipline and grievance adjudication.

7. Under the definition of "supervisory employee" in 8 AAC 97.990(a)(5), PCN 11-5013 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 11-5013 shares with other members of the supervisory unit.

10. Because PCN 11-5013 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.

J. Douglas Jones, incumbent in PCN 11-4051:

11. J. Douglas Jones, incumbent in PCN 11-4051, has the authority to act in the interest of the State in the area of employing and has exercised independent judgment in employing.

12. Jones has the authority to act in the interest of the State in the area of discipline and grievance adjudication.

13. Under the definition of "supervisory employee" in 8 AAC 97.990(a)(5), PCN 11-4051 is a "supervisory employee."

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

15. These supervisory duties are significant working conditions that PCN 11-4051 shares with other members of the supervisory unit.

16. Because PCN 11-4051 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 11-5013 and PCN 11-4051 appropriately in the general government unit is DENIED;

2. The fishery biologists’ III PCN 11-5013 and PCN 11-4051 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, (J. Douglas Jones, PCN 11-4051, Ronald P. Josephson, PCN 11-5013) v. STATE OF ALASKA, DEPARTMENT OF FISH & GAME and ALASKA PUBLIC EMPLOYEES ASS’N/AFT, AFL-CIO, Case No. 96-473-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

Mila Doyle, APEA

Signature

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