CASE NO. 96-457-UC (96-471-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. 96-457-UC (96-471-UC Consol.)

DECISION AND ORDER NO. 232

Digest: The bargaining unit placement of an administrative manager II position, PCN 10-0112, 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 an administrative officer I¹ in the Department of Natural Resources, State Pipeline Coordinator’s Office, 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 Robert A. Doyle 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 6, 1996, the hearing officer denied the motion to dismiss and granted the request for hearings.

Cases 95-457-UC and 96-471-UC were consolidated for hearing purposes. On March 6, 1996, the hearing was set for the week of April 1-5, 1996. On March 26, 1996, ASEA provided notice that it was withdrawing the petition on the basis of a letter in which a State representative notified ASEA that it had rescinded its determination that PCN 10-0112 should be in the supervisory unit. The hearing was convened on April 4, 1996. APEA opposed the withdrawal. At the hearing, the hearing officer continued the hearing for a period of six months. On May 17, 1996, ASEA filed a second unit clarification petition for PCN 10-0112, which the Agency handled as an amendment to the first petition. On June 27, 1996, the hearing was scheduled for September 27, 1996.

The case was heard on April 4 and September 27, 1996, before Hearing Officer Jean Ward. The record closed on September 27, 1996.

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 and Keri Clark, business agents, for intervenor Alaska Public Employees Association/AFT, AFL-CIO.

Issue

1. Is the appropriate unit for an administrative manager II (PCN 10-0112) in the supervisory unit or the general government unit?

Summary of the Evidence

A. Exhibit.

The parties presented the following joint exhibit, which was admitted into the record:

M. Class specification for administrative manager I-IV (Dec. 27, 1995).

B. Testimony.

Jay Norman Newgaard, incumbent in PCN 10-0112; Jerry Brossia, State Pipeline Coordinator; and Gary Reimer, Joint Pipeline Officer, 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 filed on March 18, 1996. ASEA also filed motions on March 13, 1996: (1) to determine whether the moving of persons and positions from the general government unit to positions within the supervisory unit violates the merit system of employment; (2) to determine the proper definition of a supervisor under the terms of the bargaining agreement between ASEA/AFSCME, Local 52, AFL-CIO and the State of Alaska covering the general government unit employees; (3) to declare 8 AAC 97.990(a)(5) invalid in its application to ASEA/AFSCME, Local 52, AFL-CIO and the State of Alaska; and (4) to determine whether supervisors can be in the same bargaining unit as persons supervised. 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.

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

3. Jay Newgaard, the incumbent in PCN 10-0112, is in the Department of Natural Resources, State Pipeline Coordinator’s Office. The State Pipeline Coordinator’s Office consists of 11 different State and federal agencies operating as a unified agency. The organizational structure is unusual in State government. State personnel may have full supervisory responsibility for federal positions and federal personnel may have full supervisory responsibility for State positions.

4. At the time this petition was filed, PCN 10-0112 was classed as an administrative assistant II. Reclassification to an administrative officer I and then to an administrative manager II occurred while the case was pending.

5. PCN 10-0112, at all times relevant to these proceedings, has been occupied by Jay N. Newgaard and located in the general government bargaining unit.

6. The class series administrative manager is defined as follows:

The Administrative Manger (AM) series encompasses a broad range and variety of work which requires providing, securing and/or negotiating for the administrative resources and services necessary to the operation of an organizational unit (e.g., section, field, area, region, division, department, or institution). As part of the management team, position in this series work in direct association with a higher level AM or the organizational unit senior level administrator primarily responsible and accountable for directing and accomplishing the unit’s fundamental goal or mission (typically a director, deputy director, regional manger, institution/facility administrator or similar position). The work may be accomplished through direct participation, through the direct supervision of staff, or through indirect, technical supervision.

Exh. M, at 1.

7. As a result of an organizational restructuring of the Joint Pipeline Office following the recommendation of a consultant, a personnel specialist recommended a reclassification of the position from an administration assistant II, range 14, to an administrative officer I, range 17. J. Dailey, memorandum to E. Clothier, at 2 (Aug. 23, 1995).

8. Significant new responsibilities were shifted to PCN 10-0112:

Specifically, PCN 100112 is responsible for the day-to-day administration of information resources management, library services, budget and fiscal, and general administrative functions related to property and supply, personnel/payroll and training coordination. The position directly supervises a Librarian I (R15), and Administrative Clerk III (R10-see below) and a Data Processing Manager (R21) and indirectly five other positions.

Recently, due to the results of a second audit conducted by the U.S. General Accounting Office, the top State executive and supervisory (State Pipeline Coordinator) transferred his day-to-day administrative authority and

responsibility to PCN 100112--this would allow the State Pipeline Coordinator to spend more time and energy, on-site, to address and resolve problems related to high priority gas and oil projects.

Id., at 2.

9. The position description questionnaire for PCN 10-0112 following the restructuring of the Joint Pipeline Office was for an administrative officer I, effective September 1, 1995. Position description questionnaire PCN 10-0112 (Aug. 25, 1995).

10. On September 29, 1995, the State notified ASEA that the administrative officer I, PCN 10-0112, was more appropriately in the supervisory unit. P. Judson, letter to G. Masten (Sept. 29, 1995).

11. On May 8, 1996, the State notified ASEA that PCN 10-0112, which had been reclassified from an administrative officer I to an administrative manager II, was more appropriately in the supervisory unit. P. Judson, letter to C. O’Connell (May 8, 1996).

12. The position description questionnaire for PCN 10-0112 describes the position’s personnel duties as follows:

Provides guidance, direction and supervises the daily activities of the Administrative Assistant who is responsible for all JPO-wide management of personnel actions affecting classifications, reclassifications, evaluations, training, pay problems, appointments, benefits, leave, positions descriptions, and PCN lists. Request registers, prepare personnel actions, request for appointments, promotion, account code changes, retirement, termination, lay off, to assure compliance with statutes and regulations. Preparation of staffing charts, assist employees with preparation of various personnel and benefit forms.

Position description questionnaire PCN 10-0112, at 2 of supplement (April 9, 1996).

13. The position description questionnaire (PDQ) shows that Newgaard directly supervises six positions: librarian PCN 10-0115, administrative clerk PCN 10-0111, data processing manager PCN 10-0119, records manager A 412-7, program analyst A 648-9, and land status clerk A 413-A. Three of these positions are State positions and the other three are federal positions. His subordinates supervise 10 positions. Id., at 6.

14. Newgaard has authority to decide what action is necessary for the three State positions: (librarian, administrative clerk, and data processing manager) in all of the categories listed: appoint, promote, transfer, suspend, discharge, grievances, approve leave, complete performance evaluation, assign and check work, instruct/train, and set priorities and work schedules. Id.

15. The supervisory responsibilities questionnaire for this position shows that Newgaard has the authority to decide personnel action in the areas of appoint, promote transfer, suspend, discharge, or settle grievances, but his supervisor may change or overturn his decision. Supervisory responsibilities questionnaire for PCN 10-0112, at 1-2 (Jan. 18, 1996).

16. Newgaard participated in Greg Doggett’s appointment. He conducted preliminary interviews based on criteria that he had developed and he determined who the top three applicants were. Then Newgaard and a team of two federal employees selected Doggett. As the sole State representative on the team, Newgaard exercised authority on behalf of the State to hire Doggett.

17. At the time Doggett was hired, the two federal employees were acting in a co-lead capacity with Newgaard. The organizational structure has changed since that time. Newgaard testified that, if one of the three State positions that he supervises became vacant, he would hire someone for the position by himself because there are no longer federal employees acting in a co-lead capacity.

18. Newgaard participated in the promotion of PCN 10-0111. Newgaard changed the duties of this position, advised the employee to revise her position description questionnaire, and approved the submission of a new position description questionnaire requesting an upgrade. The upgrade was granted, resulting in a promotion.

19. He also has hired federal employees and has some supervisory authority over several federal employees.

20. The State Pipeline Coordinator, Jerry Brossia, who is Newgaard’s supervisor, confirmed Newgaard’s authority to act in the interest of the State in the employing and discipline functions.

21. A federal employee, Gary Reimer, who is the Joint Pipeline Office Manager, also confirmed Newgaard’s authority to act in the employing and discipline functions concerning both federal and State employees.

22. Newgaard has not had any opportunity to discipline the State employees that he supervises, although he has participated in the discipline of federal employees.

23. Newgaard has not had any opportunity to adjudicate a State employee’s grievance. The employee in PCN 10-0115 filed a classification review request. However, this type of action is not a grievance.

24. Newgaard 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.

5. Jay N. Newgaard, incumbent in administrative manager II PCN 10-0112, has the authority to act in the interest of the State in the areas of employing, disciplining, and grievance adjudication for the three State employees that he supervises.

6. Newgaard exercised independent judgment in promoting a State employee when the opportunity arose. He also exercised independent judgment in hiring Doggett. Because he was the only State representative on the three-member team that decided to employ Doggett, he exercised authority on behalf of the State in hiring.

7. Supervision of federal employees in not relevant to a determination of supervisory status under 8 AAC 97.990(a)(5), except as it helps show or prove the level of supervisory authority exercised over State employees. See State of Alaska v. Alaska State Employees Ass’n, AFSCME Local 52, AFL-CIO, Decision & Order No. 198, at 3-4, 7-8 (Nov. 15, 1995), remanded Case No. 3 AN 95-9083 CI (Super. Ct., Mar. 25, 1996), decision after remand State of Alaska v. Alaska State Employees Ass’n, AFSCME Local 52, AFL-CIO, Decision & Order No. 219.

8. Under the definition of "supervisory employee" in 8 AAC 97.990(a)(5), PCN 10-0112, 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 10-0112 shares with other members of the supervisory unit.

11. Employee preference supports placing PCN 10-0112 in the supervisory unit.

12. Because PCN 10-0112 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 administrative manager II PCN 10-0112 appropriately in the general government unit is DENIED;

2. The administrative manager II PCN 10-0112 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, (Jay Norman Newgaard, PCN 10-0112) v. STATE OF ALASKA, DEPARTMENT OF NATURAL RESOURCES and ALASKA PUBLIC EMPLOYEES ASS’N/AFT, AFL-CIO, Case No. 96-457-UC (96-471-UC Consol.), dated and filed in the office of the Alaska Labor Relations Agency in Anchorage, Alaska, this 13th day of August, 1997.

Cindy Teter

Administrative Clerk III

This is to certify that on the 13th 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 and Keri Clark, APEA

Signature

¹After this proceeding was initiated, the position was reclassed to an administrative manager II. Position description questionnaire PCN 10-0112 (April 9, 1996).

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