CASE NO. 95-379-RD

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. 95-379-RD

DECISION AND ORDER NO. 233

Digest: Correctional officers III are not supervisors as defined in 8 AAC 97.990(a)(5) and are therefore appropriately members of the correctional officers unit. As members of that unit, they are entitled to vote in the representation election ordered in Decision and Order No. 211. The ballot in that election will provide three choices for the voter--the two competing labor organizations and "no bargaining representative."

DECISION

Statement of the Case

This decision and order is the second issued in this case. The first, Decision and Order No. 211, was issued on January 16, 1997, and concluded that a bargaining unit including correctional officers I, II, and III and excluding supervisory, confidential, and other employees was an appropriate unit and that the petitioner had satisfied the requirements for severing the unit from the general government unit. The order required an expedited hearing to identify any correctional officers who should be excluded from the unit as supervisors if the parties were unable to agree to the composition of the unit. This second decision and order follows that hearing.

A number of motions were filed. On March 18, 1997, ASEA moved for partial reconsideration of Decision and Order No. 211, proposing that the election proceed and the Agency defer any decision on supervisory status until after the election. ASEA supplemented the motion on March 25, 1997. PSEA concurred in the motion, but the State opposed the motion on March 24. On March 21, 1997, PSEA requested clarification of Decision and Order No. 211 on a different issue affecting the wording of the election ballot.¹ PSEA supplemented the motion on March 27. ASEA opposed the request on March 25. The requests for reconsideration are addressed in this decision.

On April 10, PSEA moved that the burden of proof be assigned to the State as the party advocating a change in supervisory status of the correctional officers, citing to NLRB case law. The hearing examiner on May 27 granted the motion in part, assigning the burden of going forward to the State but concluding that 8 AAC 97.350(f) required the petitioner to bear the burden of persuasion. On May 5, 1997, the State filed a motion for summary judgment, arguing that Decision and Order Nos. 206 and 211 supported the conclusion that a number of correctional officers III had been found to be supervisory employees. The hearing examiner denied the motion on May 28 on the basis that the facts and issues were different in this case and required an evidentiary hearing. On May 20, 1997, ASEA moved to postpone the hearing, which had been set for June 9-13. The hearing was rescheduled to July 15-18.

On June 6, ASEA filed motions to declare certain regulations invalid and to exclude witnesses from the hearing. The hearing examiner denied the motion to declare the regulations invalid. She granted the motion to exclude witnesses, relying upon NLRB v. Stark, 525 F.2d 422, 90 L.R.R.M.(BNA) 3076 (2d Cir. 1975); see also, Greyhound Lines, 319 N.L.R.B. No. 76, 153 L.R.R.M.(BNA) 1081, 1082 (1995). Additional time was allocated for the hearing after a request by the State on July 13.

Discovery was disputed. The hearing examiner denied ASEA’s requests to subpoena documents as a prehearing discovery tool, citing to AS 44.62.440 in the Administrative Procedure Act as a model rule for the conduct of prehearing discovery. Discovery Order (May 28, 1997). ASEA then requested subpoenas for documents to be produced at the hearing. The hearing examiner issued subpoenas requested by both PSEA and ASEA. The State appealed a number of the subpoenas to this Panel. At the commencement of the hearing, ASEA made a motion in limine, asking that the State’s evidence be precluded as a sanction for its failure to provide the documents subpoenaed.

At the conclusion of the State’s initial presentation of evidence, PSEA moved for a directed verdict. ASEA concurred in the motion. The two Panel members present recessed to consider the motion. The Panel did not rule, and PSEA renewed its motion at the conclusion of the hearing. On September 11, 1997, ASEA moved for the admission of additional exhibits relating to the production of State records. On September 29 the State opposed the motion.

The case was heard on July 15-17 and 22-25, 1997. The record closed on September 29, 1997, upon the receipt of the State’s response to the request for the admission of additional exhibits.

Panel: Board members Blair E. Schad, Robert A. Doyle, and Karen J. Mahurin,² participating after review of the record.

Appearances: James A. Gasper, Jermain, Dunnagan & Owens, P.C., for petitioner Public Safety Employees Association; Kent Durand and Stephen R. Porter, labor relations specialists, for respondent State of Alaska, Department of Corrections³; and Don Clocksin, Don Clocksin Law Offices, for intervenor Alaska State Employees Association, AFSCME Local 52, AFL-CIO.

Procedure in this case is governed by 8 AAC 97.330, 8 AAC 97.350 -- 8 AAC 97.480. Hearing examiner Jan Hart DeYoung presided.⁴

Issues

1. Discovery dispute: the extent of the State’s obligation to furnish documents.

a. ASEA’s motion to admit additional exhibits.

b. The State’s appeal of the subpoenas duces tecum.

c. ASEA’s motion in limine to bar admission of the State’s evidence for refusal to provide discovery.

d. PSEA’s request that the Agency draw adverse inferences in response to the State’s failure to produce records.

2. PSEA’s motion for a directed verdict on the basis that the State did not meet its burden of going forward.

3. ASEA’s request for clarification of Decision and Order No. 211: bypassing any hearing on supervisory or confidential status of correctional officers III and proceeding directly to an election.

4. PSEA’s request for clarification of Decision and Order No. 211: the ballot choices.

5. Supervisory status of correctional officers III under 8 AAC 97.990(a)(5).

Summary of the Evidence

A. Exhibits.

The following exhibits supplement the exhibits admitted previously in this case and listed in Decision and Order No. 211, at 3-5.

To satisfy its burden of going forward, Respondent State of Alaska offered the following exhibits, which were admitted into the record:

Anvil Mountain

702. Position description questionnaire (CO III) PCN 20-4203;

703. Position description questionnaire (CO III) PCN 20-4204;

704. Position description questionnaire (CO III) PCN 20-4230;

705. Position description questionnaire (CO III) PCN 20-4220;

706. Position description questionnaire (CO III) PCN 20-4205;

707. Position description questionnaire (CO III) PCN 20-4220;

Cook Inlet Pre-Trial

708. Position description questionnaire (CO III) PCN 20-6624;

709. Position description questionnaire (CO III) PCN 20-6618;

710. Position description questionnaire (CO III) PCN 20-6223;

711. Position description questionnaire (CO III) PCN 20-6616;

712. Position description questionnaire (CO III) PCN 20-6662;

713. Position description questionnaire (CO III) PCN 20-6689;

714. Position description questionnaire (CO III) PCN 20-6622;

715. Position description questionnaire (CO III) PCN 20-6617;

716. Position description questionnaire (CO III) PCN 20-6621;

717. Position description questionnaire (CO III) PCN 20-6688;

718. Position description questionnaire (CO III) PCN 20-6619;

719. Position description questionnaire (CO III) PCN 20-6669;

Fairbanks

720. Position description questionnaire (CO III) PCN 20-4103;

721. Position description questionnaire (CO III) PCN 20-4164;

722. Position description questionnaire (CO III) PCN 20-4107;

723. Position description questionnaire (CO III) PCN 20-4166;

724. Position description questionnaire (CO III) PCN 20-4163;

725. Position description questionnaire (CO III) PCN 20-4169;

726. Position description questionnaire (CO III) PCN 20-4170;

727. Position description questionnaire (CO III) PCN 20-4167;

728. Position description questionnaire (CO III) PCN 20-4186;

Hiland Mountain

729. Position description questionnaire (CO III) PCN 20-6518;

730. Position description questionnaire (CO III) PCN 20-6520;

731. Position description questionnaire (CO III) PCN 20-6523;

732. Position description questionnaire (CO III) PCN 20-6524;

733. Position description questionnaire (CO III) PCN 20-6209;

734. Position description questionnaire (CO III) PCN 20-6212;

735. Position description questionnaire (CO III) PCN 20-6526;

736. Position description questionnaire (CO III) PCN 20-6528;

737. Position description questionnaire (CO III) PCN 20-6521;

738. Position description questionnaire (CO III) PCN 20-6625;

Ketchikan

739. Position description questionnaire (CO III) PCN 20-5316;

740. Position description questionnaire (CO III) PCN 20-5333;

741. Position description questionnaire (CO III) PCN 20-5318;

742. Position description questionnaire (CO III) PCN 20-5304;

743. Position description questionnaire (CO III) PCN 20-5308;

Lemon Creek

744. Position description questionnaire (CO III) PCN 20-5150;

745. Position description questionnaire (CO III) PCN 20-5151;

746. Position description questionnaire (CO III) PCN 20-5129;

747. Position description questionnaire (CO III) PCN 20-5127;

748. Position description questionnaire (CO III) PCN 20-5145;

749. Position description questionnaire (CO III) PCN 20-5146;

750. Position description questionnaire (CO III) PCN 20-5189;

Palmer

751. Position description questionnaire (CO III) PCN 20-6198;

752. Position description questionnaire (CO III) PCN 20-6129;

753. Position description questionnaire (CO III) PCN 20-6131;

754. Position description questionnaire (CO III) PCN 20-6133;

755. Position description questionnaire (CO III) PCN 20-6135;

756. Position description questionnaire (CO III) PCN 20-6136;

757. Position description questionnaire (CO III) PCN 20-6192;

Sixth Avenue

758. Position description questionnaire (CO III) PCN 20-6719;

759. Position description questionnaire (CO III) PCN 20-6709 (Not filed & not in record);

760. Position description questionnaire (CO III) PCN 20-6720;

761. Position description questionnaire (CO III) PCN 20-6761;

762. Position description questionnaire (CO III) PCN 20-6773;

763. Position description questionnaire (CO III) PCN 20-6718;

764. Position description questionnaire (CO III) PCN 20-7655;

765. Position description questionnaire (CO III) PCN 20-6708;

Spring Creek

766. Position description questionnaire (CO III) PCN 20-8131;

767. Position description questionnaire (CO III) PCN 20-8140;

768. Position description questionnaire (CO III) PCN 20-8137;

769. Position description questionnaire (CO III) PCN 20-8083;

770. Position description questionnaire (CO III) PCN 20-8135;

771. Position description questionnaire (CO III) PCN 20-8132;

772. Position description questionnaire (CO III) PCN 20-8127;

773. Position description questionnaire (CO III) PCN 20-8084;

774. Position description questionnaire (CO III) PCN 20-8134;

775. Position description questionnaire (CO III) PCN 20-8136;

776. Position description questionnaire (CO III) PCN 20-8082;

777. Position description questionnaire (CO III) PCN 20-8139;

778. Position description questionnaire (CO III) PCN 20-8133;

779. Position description questionnaire (CO III) PCN 20-8128;

780. Position description questionnaire (CO III) PCN 20-8130;

781. Position description questionnaire (CO III) PCN 20-8129;

Wildwood

782. Position description questionnaire (CO III) PCN 20-6316;

783. Position description questionnaire (CO III) PCN 20-6315;

784. Position description questionnaire (CO III) PCN 20-6314;

785. Position description questionnaire (CO III) PCN 20-6317;

786. Position description questionnaire (CO III) PCN 20-6485;

787. Position description questionnaire (CO III) PCN 20-6486;

788. Position description questionnaire (CO III) PCN 20-6355;

789. Position description questionnaire (CO III) PCN 20-6422;

790. Position description questionnaire (CO III) PCN 20-6437;

791. Position description questionnaire (CO III) PCN 20-6313;

792. Position description questionnaire (CO III) PCN 20-6438;

Yukon Kuskokwim

793. Position description questionnaire (CO III) PCN 20-4322;

794. Position description questionnaire (CO III) PCN 20-4323;

795. Position description questionnaire (CO III) PCN 20-4324;

796. Position description questionnaire (CO III) PCN 20-4325;

797. Position description questionnaire (CO III) PCN 20-4326;

Point McKenzie

798. Position description questionnaire (CO III) PCN 20-3002;

799. Position description questionnaire (CO III) PCN 20-6340;

1100. Position description questionnaire (CO III) PCN 20-6133 (Rogers, W., Palmer);

1101. Position description questionnaire (CO III) PCN 20-8824 (Avila, G., Mat-Su); and

1102. Withdrawn (admitted as ASEA exh. 844).

Petitioner Public Safety Employees Association offered the following rebuttal exhibits, which were admitted into the record:

601. State-ASEA Bargaining Agreement (1996-99);

602. Department of Corrections Policy & Procedures Manual (excerpts);

616. Organizational Schematic - Anvil Mountain Correctional Facility;

617. Organizational Schematic - Cook Inlet Pre-trial Facility;

618. Organizational Schematic - Fairbanks Correctional Center;

619. Organizational Schematic - Hiland Mountain Correctional Center;

620. Organizational Schematic - Ketchikan Correctional Center;

621. Organizational Schematic - Lemon Creek Correctional Center;

622. Organizational Schematic - Mat-Su Pre-trial Facility;

623. Organizational Schematic - Palmer Correctional Center;

624. Organizational Schematic - Sixth Avenue Correctional Center;

625. Organizational Schematic - Spring Creek Correctional Center;

626. Organizational Schematic - Wildwood Correctional Center;

627. Organizational Schematic - Wildwood Pre-trial Facility;

628. Organizational Schematic - Yukon-Kuskokwim Correctional Center;

629. Organizational Schematic for the Department of Corrections;

630. Withdrawn (admitted as ASEA exhibit 830);

631. PDQ for Armstrong, Garland (2/22/96);

632. PDQ for Bailey, Alan (2/14/96);

633. PDQ for Brown, Kenneth (2/26/96);

634. PDQ for Dominick, Rose (2/21/96);

635. PDQ for Edwards, Samuel (2/26/96);

636. PDQ for Epperson, Ronnie (2/28/96);

637. PDQ for Kincheloe, Lawrence (Ass’t Superintend. - Seward)(2/21/96);

638. PDQ for Larson, Richard (Ass’t Super. - Hiland Mt.) (2/26/96);

639. PDQ for Long, Dale (Super. - Wildwood P.T.) (2/26/96);

640. PDQ for Shea, Joyce (2/23/96);

641. PDQ for Templeton, Denise (2/22/96);

642. PDQ for Terreault, Allen (Super. II - Cook Inlet P.T.)(2/28/96);

643. PDQ for Webster, Gary (Superintendent. - 6th Avenue) (2/23/96);

644. PDQ for Wehrer, Michael (Superintendent - Hiland Mt.) (3/1/96);

645. Memo from Crile to Laney re: Deputy Director of Corrections (7/28/94);

646. Letter from King to Ludwig re: PCN Transfer from SU to GGU (6/24/92);

647. Memo from Schmidt to Jaron re: CO III classifications (3/8/84);

648. Memo from Rilatos to Hungerford re: various CO classifications (3/18/88);

649. Memo from Rilatos to Hungerford re: creating CO III classifications, Spring Creek (3/2/88);

650. Memo from Eakin to Laney re: CO III PDQs (8/3/95);

651. Memo from Lassiter to Larsen re: reclassification of CO IIs to CO IIIs (9/28/90);

652. Memo from Rilatos to Hungerford re: reclassification CO IIs to CO IIIs (4/14/88);

653. Withdrawn (admitted as ASEA exhibits 807-809); and

656. Position description questionnaire (CO II) PCN 20-8824 (Avila, George)(3/9/97).

Petitioner PSEA named the following exhibits in its exhibit list but did not offer them:

603. Post Orders - Anvil Mountain Correctional Center;

604. Post Orders - Cook Inlet Pre-Trial Facility;

605. Post-Orders - Fairbanks Correctional Center;

606. Post Orders - Hiland Mountain Correctional Center;

607. Post Orders - Ketchikan Correctional Center;

608. Post Orders - Lemon Creek Correctional Facility;

609. Post Orders - Mat-Su Pre-trial Facility;

610. Post Orders - Palmer Correctional Center;

611. Post Orders - Sixth Avenue Correctional Center;

612. Post Orders - Spring Creek Correctional Center;

613. Post Orders - Wildwood Correctional Center;

614. Post-Orders - Wildwood Pre-trial Facility; and

615. Post Orders - Yukon-Kuskokwim Correctional Center.

Intervenor Alaska State Employees Association, AFSCME Local 52, AFL-CIO, offered the following exhibits, which were admitted into the record:

801. Class specification, correctional officer III (Rev. 1/20/94);

802. Class specification, correctional officer III (Rev. 11/16/96);

803. Class specification, correctional officer II (Rev. 1/20/94);

804. Class specification, correctional officer II (Rev. 11/16/96);

805. Class specification, correctional officer I (Rev. 1/20/94);

806. Class specification, correctional officer I (Rev. 11/16/96);

807. Class specification, assistant correctional superintendent (Rev. 7/1/96);

808. FLSA overtime exemptions work sheets, assistant correctional superintendent (7/30/96) (three documents);

809. Class specification, correctional superintendent I/II (Rev. 1/1/97);

810. Class specification, deputy director, corrections (Rev. 2/6/92);

811. Position description questionnaire, deputy director, corrections (Allen J. Cooper) (1/21/94);

812. Position description questionnaire, deputy director, corrections (Victoria A. Deakin) (2/9/94);

813. Class specification, assistant director, division of institutions (Rev. 10/1/91);

814. Class specification, training officer III (PCN 20-7000) (rev. 7/1/89);

815. Position description questionnaire, training officer III (11/84);

816. Class specification, adult classification officer (1/5/76);

817. Position description questionnaire, adult classification officer (PCN 20-7201)(4/10/96);

818. FLSA overtime exemptions work sheet, adult classification officer (4/10/96);

819. Class specification, program coordinator (4/1/76);

820. Position description questionnaire, central compliance officer (PCN 20-6480)(5/6/94);

821. Short Test for exemption (FLSA), Program Coordinator (5/9/94);

822. Position description questionnaire, prison transportation coordinator (5/16/89);

823. Eakin, memorandum to Laney (7/30/96) (pay of correctional superintendents);

824. DOC Policies and Procedures, Section 201.03, appointments to range 16 and above (12/20/84);

825. DOC Policies and Procedures, Section 803.01, post orders (10/1/90);

826. DOC Policies and Procedures, Section 202.07, acting in a higher range (7/5/85);

827. DOC Policies and Procedures, Section 202.01, code of ethics and standards of conduct (7/22/91);

828. DOC Policies and Procedures, Section 202.11, employee lateral transfers) (4/20/90);

829. DOC Policies and Procedures, Section 202.08, disciplinary action guidelines (8/6/90);

830. Judge K. Hunt, DOC Final Cleary Settlement,(9/21/90);

831. Templeton, memorandum, PDQs/labor relations/what’s up, etc., (3/6/97);

832. withdrawn; admitted in earlier hearing;

833. withdrawn; admitted in earlier hearing;

834. Productivity Improvement Center, Progressive Discipline, a supervisor’s guide (undated) (excerpts);

835. Personnel policies and procedures manual (DOA, DOP/EEO) (excerpts);

836. State/GGU contract (1996-1999) (excerpts);

837. Washington Dep’t of Health & Social Services, Depth Study Report (June 1986);

838. In re ASEA and State of Alaska, Opinion and Award (arbitrator Dorsey, July 9, 1992);

839. City Auditor, City of Seattle, Ratio of staff to managers in city government (Jan. 25, 1996);

840. In re AFSCME/ASEA & State, Opinion and Award (arbitrator Lehleitner, Nov. 9, 1992);

841. Affid., Charles O’Connell (July 23, 1997);

842. ASEA, memorandum, CO III ballots sent/returned;

843. Position description questionnaire, correctional superintendent I (PCN 20-4200) Myron Michels (7/1/96);

844. D. Corso, E-mail to all superintendents (Feb. 27, 1997);

845. D. Corso, E-mail (April 1, 1997);

846. Position description questionnaire, correctional officer III (PCN 20-5302), Diane Gregory; and

847. B. Reaume, memorandum (July 1, 1997) (rescinding supervisor’s manual covering personnel policies and procedures).

ASEA’s motion to add exhibits:

848. S. Edwards, supervisory information form for G. Avila (Feb. 28, 1997): not admitted, untimely;

849. ASEA subpoena to M. Pugh, commissioner (June 26, 1997): admitted;

850. ASEA subpoena to M. Pugh, commissioner (July 10, 1997): admitted;

851. ASEA subpoena to M. Pugh, commissioner (July 25, 1997): admitted;

852. K. Durand, letter to D. Clocksin (Aug. 8, 1997): admitted; and

853. ASEA press release (Sept. 4, 1997), not admitted, untimely and irrelevant.

B. Testimony.

Respondent State of Alaska presented the testimony of Cooper, Allen, Deputy Director of the Division of Institutions, Department of Corrections; McMullen, Michael, Personnel Manager II, Division of Personnel, Department of Administration; and Larry Kincheloe, Superintendent, Spring Creek Correctional Center.

Petitioner Public Safety Employees Association and Intervenor Alaska State Employees Association, AFSCME Local 52, AFL-CIO, presented the testimony of Main, Bruce, Correctional Officer III, Hiland Mountain Correctional Center; Eddy, Forrest, Correctional Officer III, Wildwood Correctional Center; Harrell, Henry, Correctional Officer III, Fairbanks Correctional Center; Chubin, Dale, Sixth Avenue Correctional Facility; Longpré, Paul J., Correctional Officer III, Yukon Kuskokwim Facility; Bill Rogers, Correctional Officer III, Palmer Correctional Facility; Avila, George, Correctional Officer III, Mat-Su Pre-trial Facility; Mestas, Leroy, Correctional Officer III, Ketchikan Correctional Center; Palmquist, Robert, Correctional Officer III, Spring Creek Correctional Center; Damron, Gary Keith, Correctional Officer III, Hiland Mountain Correctional Center; Rita Andersen, Correctional Officer III, Anvil Mountain Correctional Center; Linda Moses, Correctional Officer III, Cook Inlet Pretrial Facility; Gregory, Diane, Correctional Officer III, Ketchikan Correctional Center; Antrim, Mark, Correctional Officer III, Lemon Creek Correctional Center; Pinquoch, David, Correctional Officer III, Hiland Mountain Correctional Center; Rodgers, Joe, Correctional Officer III, Cook Inlet Pretrial Facility; Russell, Richard, Correctional Officer III; Wilson, Ron, Correctional Officer II, Anvil Mountain; Chaney, Mary Ann, Probation Officer II, Cook Inlet Pretrial Facility; Gage, Marie, Correctional Officer III, Spring Creek Correctional Facility, O’Connell, Charles, Business Manager, Alaska State Employees Ass’n, AFSCME Local 52, AFL-CIO.

The Respondent State of Alaska presented the rebuttal testimony of Kincheloe, Larry, Superintendent, Spring Creek Correctional Center; and Shea, Joyce, Superintendent, Anvil Mountain Correctional Facility.

C. Agency case file. 8 AAC 97.410.

Findings of Fact

The Panel, by a preponderance of the evidence, supplements the facts in Decision and Order No. 211, 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. Public Safety Employees Association (PSEA) is the recognized bargaining representative of the public safety unit of State of Alaska employees.

3. At the time of the hearing all correctional officers III were located in the general government unit with all correctional officers. Exhs. 645-652. In Decision and Order No. 211, this Agency found a correctional officers unit more appropriate.

4. The unit is described as follows:

Included: All correctional officers I, II, and III;

Excluded: Any supervisory and confidential employees under 8 AAC 97.990 and all other State employees.

5. There are 118 correctional officers III. The State disputes the unit placement of 98 of them, taking the position that the 98 should be excluded from the unit as supervisory employees. Exhs. 702-799.

6. The correctional officers III in the positions described in exhibits 702-799 share a community of interest with other correctional officers I, II, and III. They customarily wear uniforms, perform the same basic function of providing security at correctional institutions, have similar duties, and have similar training.

7. The correctional officers III share a sense of community with other correctional officers. They may socialize together. Some are active in union matters. The correctional officer series is a career ladder. Significantly, a number of correctional officers III perceive the line between management and nonmanagement employees to be drawn between the correctional officers and the assistant superintendents and superintendents of the institutions rather than between correctional officers II and III.

8. As members of the general government unit, the correctional officers I, II, and III share the same wage schedule, including eligibility for overtime, in contrast to the assistant superintendents and superintendents who are in the supervisory unit and overtime ineligible. Tr. 93.

9. Many of the correctional officers III, such as the shift supervisors, work a rotating 12-hour shift, in contrast to the assistant superintendents and superintendents who work a standard 37.5 hour work week.

10. Correctional officers III share similar working conditions with other correctional officers I, II, III. The work was described as blue collar. Tr. 890. It is distinguished from work by the superintendents and assistant superintendents in large part by the contact with the inmate population. Correctional officers work closely with the inmate population. They work side by side, performing similar duties. They may conduct pat searches. They may have to "take down" or physically restrain a prisoner. They may be involved in booking inmates, keeping track of inmate movement, and supervising inmate work crews. They may also perform inventory and maintain institutional logs. Tr.309, 624, 580, 740-741, 1115.

11. All of the correctional officers testifying who addressed their bargaining unit preference expressed a preference for placement in the correctional officers unit, from which we can infer a general preference for the correctional officers unit.

12. ASEA polled the correctional officers III. Of the 60 persons responding to the poll, 47 of them preferred placement in a correctional officers unit, and 12 preferred a supervisory unit. One response was disqualified. ASEA’s poll further supports the finding that more correctional officers III prefer placement in a correctional officers unit than in a supervisory unit.

13. Each PDQ submitted in exhibits 702-799 rates a correctional officer’s authority in certain listed supervisory activities. In many or most of these PDQs, this rating would support the conclusion that the position has authority to supervise as set out in 8 AAC 97.990(a)(5). We find, however, that these PDQs are not trustworthy and do not give any weight to these ratings. The testimony of the incumbents who testified was inconsistent with their ratings in the PDQ. These witnesses were not impeached, and we credit their testimony over the PDQs.

14. None of the correctional officers testifying engage in the employing function.

15. The correctional officers III serving as shift supervisors evaluate the correctional officers under their direction. The evaluation of a correctional officer I is particularly significant because the effect of a positive evaluation is that the officer meets probation and becomes a correctional officer II, the journey level correctional officer. The effect of an unsatisfactory evaluation is the failure to make probation and ultimately the loss of the position.

16. Under the current policy of the Department of Corrections, correctional officers do not participate in hiring, except at the Spring Creek Correctional Center. Tr. 96- 97; 1358-1361. A correctional officer may have an opportunity to participate on a hiring committee. The committee interviews the candidates for a position, often using prepared questions, and provides a report or recommendation to the superintendent or assistant superintendent who makes the decision to hire.

17. Any participation on a hiring committee is wholly independent of the correctional officer’s responsibility as shift supervisor; correctional officers never participate in the selection of correctional officers assigned to their shift.

18. The Department of Corrections does not make a practice of soliciting or following correctional officer III recommendations in the area of employing.

19. Correctional officers may not suspend, discharge, or demote employees.

20. Correctional officers III, such as shift supervisors, may send an incapacitated employee home and report to the assistant superintendent or superintendent an incident that may result in discipline. In some cases the correctional officer III may implement the discipline, for example, by issuing a written warning. The correctional officer III, however, rarely recommends discipline or participates in the decision to impose discipline.

21. The Department of Corrections does not make a practice of soliciting or following the recommendations of correctional officers III in the area of discipline.

22. None of the correctional officers III adjudicate grievances on behalf of management, although some correctional officers III may have a role in grievance adjudication as a shop steward and employee advocate.

Discussion

Following a hearing on PSEA’s petition to carve out a unit of correctional officers and represent them, we concluded in Decision and Order No. 211 that a unit of nonsupervisory correctional officers would be an appropriate unit for purposes of collective bargaining. We further held that any correctional officers who were confidential or supervisory employees under 8 AAC 97.990 (a)(1) and (5) must be excluded under 8 AAC 97.090. Because the

parties could not agree on the supervisory status of the correctional officers III, a second hearing was scheduled on that issue. Additional issues concern the State’s obligation to furnish documents and the wording of the ballot.

1. Discovery dispute: the extent of the State’s obligation to furnish documents.

The labor organizations sought documents that the State would not provide either because of confidentiality concerns or the inconvenience of assembling and producing the documents.

On May 8 and 22, ASEA requested subpoenas that would require the State to produce documents before the date of the hearing. The information sought included post orders, policies covering succession of authority, minutes of institutional staff supervisory meetings, portions of the department of corrections policy and procedures manual, all documents that discuss or describe the job duties for the job class, and all questionnaires, memoranda, or other documents relating to the decision to identify the 98 correctional officers as supervisory. On May 28, the hearing examiner denied the requests, ruling that AS 23.40.160 did not authorize prehearing discovery and that part of the request was "unreasonable." She urged the parties to cooperate in the exchange of information, but said she would order discovery under the Administrative Procedure Act’s AS 44.62.440(a) and Civil Rule 34 upon a showing of good cause. Neither labor organization sought discovery under the APA.

Both labor organizations requested subpoenas for the production of potentially relevant evidence at the hearing. On June 26, the hearing examiner issued a subpoena at ASEA's request requiring Corrections Commissioner Pugh to produce post orders, the manual, and staff minutes on the first day of the hearing -- July 15. Exh. 849. At PSEA's request, she also issued subpoenas to the institutional superintendents to appear at the hearing and produce post orders and emergency manuals. On July 7, 1997, the State asked the Panel to overturn the hearing examiner’s issuance of the subpoenas. The State did provide some of the information sought. The State advised by letter dated July 16 that it had shipped post orders for all supervisory correctional officers except the Anvil Mountain, Lemon Creek, and Spring Creek correctional centers, deleting the material related to the State’s security concerns. K. Strasbaugh, letter to ALRA members (Aug. 25, 1997).

Additional subpoenas were issued after the State’s July 7 appeal. On July 10, the hearing examiner signed another ASEA-requested subpoena requiring the commissioner to produce "policies on delegation and succession of authority." Exh. 850. On July 25, 1997, a subpoena was issued for production of all communications between Dianne Corso and the superintendents and assistant superintendents regarding the supervisory status of correctional officers III. Exh. 851. The State did not appeal any of these later subpoenas and has not produced the information sought. Exh. 852.

This Agency’s authority to compel disclosure of information appears in AS 23.40.160. That section provides:

(a) For the purpose of the investigations, proceedings, or hearings which the labor relations agency considers necessary to carry out the provisions of AS 23.40.070 -- 23.40.260, the labor relations agency may issue subpoenas requiring the attendance and testimony of witnesses and the production of relevant evidence.

(b) The labor relations agency may administer oaths, examine witnesses, and receive evidence.

(c) The attendance of witnesses and the production of evidence may be required from any place in the state at any designated place of hearing.

(d) If a person refuses to obey a subpoena issued under AS 23.40.070 -- 23.40.260, the superior court in the district in which the person resides or is found may, upon application by the labor relations agency, issue an order requiring the person to comply with the subpoena.

AS 23.40.160 is not a discovery statute. It authorizes investigative subpoenas, presumably for use by the Agency in the investigation of unfair labor practice charges. The national labor relations laws likewise do not provide for discovery. NLRB Casehandling Manual ? 10292 (June 1989). AS 23.40.160 also authorizes the production of relevant evidence at a hearing.⁵ AS 23.40.160 is implemented in 8 AAC 97.350, which provides that the Agency will "require any person it considers appropriate to appear and testify at a hearing and to produce evidence." Emphasis added. It further provides in subsection (e),

Upon the application of a party who has the right to present evidence and call witnesses at a hearing, the labor relations agency will issue a subpoena requiring the attendance and testimony of witnesses and the production of evidence. An application for a subpoena must be in writing and state the name of the witness or evidence with enough particularity to allow the witness or evidence to be identified. Service of the subpoena is to be arranged by the party.

The documents sought by ASEA and PSEA included the policy and procedure for the Division, the standard operating procedure, all post orders, and emergency manuals. The relevance is obvious. These documents, which direct the operation of the correctional institutions, could reasonably be assumed to address the duties of the correctional officers, including any supervisory duties. The State did provide access to the policy and procedure, except for the emergency procedures. It also provided redacted post orders for the shift supervisors. Tr. 12. It permitted PSEA to view but not retain unredacted post orders. PSEA Closing Argument Brief, at 25 n. 12 (Sept. 12, 1997). It did not provide the institutional standard operating procedures, many of the post orders, and the emergency manuals. Supervisory meeting minutes for a three-year period were also sought. After a review of some of the supervisory meeting minutes -- one work day reviewing the minutes from the Fairbanks institution and two work days reviewing Spring Creek minutes -- the State represented that it discovered one reference to a supervisory duty. The State’s justifications for refusing to disclose relevant evidence were the risks to the security of the institutions, the privacy interests of the inmates, and the confidentiality of records touching on personnel issues. Also a factor was the burden of gathering and reviewing the documents requested.

This dispute raises several issues. First, ASEA’s motion to admit exhibits, filed September 7, 1997, must be addressed. Second, we must address whether the issuance of the subpoenas was appropriate. Third, if the subpoenas were valid, should the State be sanctioned for noncompliance. Fourth, should the Agency draw adverse inferences from nondisclosure.

a. ASEA’s motion to admit exhibits.

On September 11, 1997, ASEA asked that six additional exhibits be admitted. The State objected to the request on September 29, 1997. One of the exhibits, exhibit 848, is a supervisory questionnaire for a correctional officer whom the State does not seek to have declared a supervisor: George Avila. ASEA offers the exhibit because the levels of authority in the exhibit differ from the levels in other exhibits pertaining to Mr. Avila. Admission is denied. The document is of marginal relevance, is cumulative of evidence already in the record (George Avila testified at the hearing), and it was offered late. For similar reasons we deny admission of exhibit 853, a press release issued by ASEA on September 4, 1997. This document is untimely and irrelevant.

In contrast, the remaining exhibits are documents, including subpoenas, pertaining to the dispute about the disclosure of records. The State’s objection to the admission of the records is that it objected to the subpoenas. Because the objection to the subpoenas is an issue in the case, the subpoenas and the State’s responses are relevant. This issue was handled principally in briefing because the facts are not contested. Nevertheless, the documents could assist this Panel in determining the dispute because they set out the materials under subpoena and thus in dispute. Otherwise, the Panel would be required to rely on representations about the contents of the subpoenas and correspondence. Exhibits 849-852 are admitted.

b. The State’s appeal of the subpoenas duces tecum.

The parties on both sides of this issue raise valid concerns. PSEA has the burden to persuade. It must support its position, but all relevant documents are in the custody of the State. Both ASEA and PSEA expressed strong suspicions, proven in part, that the position description questionnaires (PDQs) were being manufactured to support the fact that the correctional officers III had supervisory duties. PDQs are the key documentary evidence this Agency has relied upon in unit clarification cases to determine the supervisory status of State workers. State v. Alaska State Employees Ass’n, AFSCME Local 52, AFL-CIO, Decision & Order No. 219, at 46 (May 27, 1997); see e.g., Alaska State Employees Ass’n, AFSCME Local 52, AFL-CIO v. State, Decision & Order No. 230, at 4 (Aug. 14, 1997). The PDQs in this case rely on and cite to some of the documents the two labor organizations seek. Exhs. 701, at 6; 707, at 7; 708, at 6; 713, at 6; 717, at 7; 720, at 6; 729, at 7; 739, at 7; 744, at 6. The documents sought could validate or discredit the PDQs. This fact is confirmed by Allen Cooper, the Deputy Director of the Division of Institutions. He states that the policy and procedure is a good guideline about what to do in various situations. Tr. 45. He further states that the standard operating procedures for the various institutions address in more detail the unique needs of the different institutions. Tr. 47. The post orders are specific to the particular post a correctional officer is assigned. Because the documents address the responsibilities of the correctional officers, they would be relevant to determining the existence of supervisory responsibilities.

On the other hand, the documents govern the operation of correctional institutions. Tr. 1527. It is not hard to imagine that they would address institutional security and, if available to the public, could compromise the security of the institutions and put employees and the general public at risk. The State maintains that disclosure could imperil security by exposing routine, the location of keys, procedures for responding to alarms; and response plans for riot, hostage, and escape situations. The matters that the State has identified as creating a security risk, however, do not appear particularly relevant to determining supervisory status. The State could satisfy its security concerns by removing the statements and references whose disclosure could create a security risk and providing the balance of the document.

The State also argues that certain statutes prohibit the release of the information sought. The State represents that inmates are discussed in supervisory meetings and the supervisory meeting minutes, for example, could disclose medical and other private information about inmates. AS 33.30.211(b); 22 AAC 05.095; Falcon v. APOC, 570 P.2d 469, 476 (1977). The labor organizations, however, are not seeking information about the inmates, and it should be possible to remove such references and still provide relevant information.

Finally, the State argues that AS 39.25.080 protects the disclosure of personnel records. The subpoenas do not ask for personnel records, and the State does not specify how the records sought would violate AS 39.25.080.

The State seems to concede that some of these records would address matters relevant to a determination of supervisory status. Memorandum in Support of Motion for Review by Agency of Hearing Officer’s Decision Re: Subpoenas, at 7 (July 10, 1997). But despite the relevance of the documents, the State argues that the documents should be protected because this Agency cannot enforce their confidentiality. In addition, the State discounts the labor organizations’ need for the documents because other sources could provide the information

sought. It also argues that the requests place a burden on Commissioner Pugh and that documents disclosure is not the best use of her time.

While the State does raise a valid concern about security, it is unable to support its nondisclosure with clear statutory authority. The weakness of the State’s legal support for its position of nondisclosure might justify the State undertaking an otherwise burdensome effort to collect, review, and redact documents or identify and make available State employees who could address the subject and the documents. In this case it was important to look beyond the PDQs because their credibility was at issue. The other documentary evidence sought was not cumulative but a key means to examine this issue. Because the actual information sought was not confidential -- the assignment and performance of duties to employ, discipline, or adjudicate grievances -- strategies could be devised that would allow the labor organizations the information they needed without compromising the security of the facilities.

But because the parties could not resolve the dispute, we must rule on the appropriateness of the subpoenas issued. We conclude that the categories of documents sought would tend to prove or disprove facts at issue in this case and are therefore relevant. We also conclude that the State has valid security concerns. We therefore amend the subpoenas to exempt from production any information addressing such State security concerns as key locations, emergency procedures, and riot, hostage, and escape. We also exempt from disclosure any medical or otherwise private information about inmates.

c. ASEA’s motion in limine to bar admission of the State’s evidence for refusal to provide discovery.

We have found that the subpoenas were valid and it follows that the State should have complied with them at least to the extent that it could do so without compromising institutional security. The next question that is presented is, what is a party’s remedy when another party withholds documents under subpoena? ASEA urges this Agency to impose a sanction against the State--strike the State’s evidence. ASEA filed a motion in limine to preclude admission of the State’s evidence on July 14. At the hearing, PSEA joined the motion. The parties’ timing did not allow an opportunity for the State to oppose the motion, and the hearing examiner stated that she would handle the motion as a motion to strike. The State opposed the motion on July 30.

ASEA argues that the Agency should strike the State’s exhibits 702-799 for its willful refusal to comply with the subpoenas. It also relies on its claim that the State violated the sequestration order and failed to follow the deadlines in the prehearing order in support of its argument.

The remedy provided in the Public Employment Relations Act is for the Agency to seek enforcement in court. AS 23.40.160(d), quoted on p. 15, supra. A basic principal of administrative law is that an agency only has the powers authorized by statute. PERA provides only for enforcement of a subpoena in superior court. The legislature could have provided broader authority. For example, the tax code provides a revenue administrative law judge with specific authority to impose just the sanctions ASEA and PSEA seek in this case. AS 43.05.460.

In contrast to a broad grant of authority such as that provided to the administrative law judge in tax cases, AS 23.40.160(d) grants this Agency only the authority to seek enforcement in superior court. This authority resembles the grant of authority to the National Labor Relations Board in the Labor Management Relations Act, § 11, 29 U.S.C. § 161(1) (West 1997), which states in part:

The Board . . . shall upon application of any party to such proceedings, forthwith issue to such party subpoenas requiring the attendance and testimony of witnesses or the production of any evidence in such proceeding or investigation requested in such application. Within five days after the service of a subpoena on any person requiring the production of any evidence in his possession or under his control, such person may petition the Board to revoke, and the Board shall revoke, such subpoena if in its opinion the evidence whose production is required does not relate to any matter under investigation, or any matter in question . . . .

Enforcement is through proceedings in federal district court. LMRA, § 11, 29 U.S.C.§ 161(2) provides for application to the court "in case of contumacy or refusal to obey a subpena issued to any person." Courts have found this provision the exclusive remedy for the enforcement of a board subpoena. In one case a reviewing court reversed an NLRB administrative law judge’s imposition of sanctions against a party who had not complied with a subpoena. It found the statutory remedy, enforcement in court, to be the exclusive remedy. NLRB v. International Medication Systems, 640 F.2d 1110, 107 L.R.R.M.(BNA) 2215 (9th Cir. 1981); see II Patrick Hardin, The Developing Labor Law 1803-1804 (3d ed. 1992).⁶

We believe that the better policy is to enforce subpoenas in superior court, rather than to impose sanctions. Sanctions, such as issue or evidence preclusion, can affect the outcome of a case and thus interfere with our responsibility to find the appropriate unit. AS 23.40.090. Moreover, penalizing a party does not further the aims of labor relations, which relies so much on cooperation between the parties. We must exercise care in this case to determine those positions appropriately in a unit of correctional officers. This unit determination could govern the unit for twenty years or longer. See e.g., Concerning petitions nos. 1-72, 2-72, 3-72, 4-72, & 5-72, Decision and Order No. 1 (Feb. 2, 1973) (setting out the general government unit). Deciding the case on the evidence and law better serves the interests of all of the parties.

We therefore conclude that enforcement in superior court is the appropriate response to a refusal to comply with a subpoena. However, if a court were to find that an administrative agency has inherent authority to sanction, we would look to Civil Rule 37(b)(3) for guidance. That rule provides the test a court considers when imposing sanctions for failure to disclose. This consideration includes the willfulness of the conduct, the materiality of the information sought, prejudice to the opposing party, whether a lesser sanction would protect the opposing party, and the need for deterrence. ASEA argues that a sanction is appropriate due to other conduct by the state and the willfulness of the violation. Ignoring subpoenas, such as the State’s response to the subpoenas issued after July 7, makes a strong case for sanctions under this rule. Promptly appealing subpoenas to the Panel, on the other hand, does not show the willful or contumacious behavior that a sanction seeks to deter.

A better solution than a sanction, however, is for the documents to be produced if they are not protected from disclosure. Our strong preference is to decide the cases on the merits rather than on a procedural technicality. Sanctioning the State is easier than enforcing the subpoena but the latter is better policy. If the documents are relevant and necessary to a decision, the solution that makes sense is the solution set out in PERA -- enforce the subpoena. We deny ASEA’s motion.

d. PSEA’s request for the Agency to draw adverse inferences in response to the failure to produce records.

PSEA, on the other hand, argues a different response to the question, what is the remedy when a party withholds documents under subpoena. PSEA maintains that this Agency should draw an adverse inference from the State’s failure to disclose; because the State is in control of the information and refuses to provide it, the Agency should conclude that the evidence supports the party that wants the documents but cannot obtain them. PSEA Closing Argument Brief, pp. 24-25, citing Auto Workers v. NLRB, 459 F.2d 1329, 1338, 79 L.R.R.M.(BNA) 2332, 2337-2338 (D.C. Cir. 1972); International Automated Machines, 285 N.L.R.B. 1122, 1123, 129 L.R.R.M.(BNA) 1265, 1266 (1987) (allowing adverse inference when obvious witness omitted); NLRB v. Shelby Memorial Hospital Ass’n, 1 F.3d 550, 553, 143 L.R.R.M.(BNA) 3062 (7th Cir. 1993).

PSEA’s proposal offers a practical solution to problems of disclosure. Its solution is not a sanction but a rule of evidence. It is based upon the assumption that a party will produce its strongest evidence to prove its case. If the information is relevant, a failure to disclose it raises an inference that disclosure would harm the case. The fact that the information was subpoenaed strengthens the inference.

The Alaska Supreme Court, however, has rejected this solution in another case. In Grimes v. Haslett, 641 P.2d 813, 821 (Alaska 1982), the court declined to draw an adverse inference from the absence of medical records. The reason was that there were other reasonable inferences that could be drawn from the absence of the records. The court found that, to establish an adverse inference, it must be shown that the records were available; that they were relevant and not simply cumulative; and that they must be expected to favor the party against whom the inference is directed. This case does not meet this test. The State’s nondisclosure is ambiguous. The records sought would not necessarily be expected to favor the State. The State’s reason for not disclosing the records is its claim that the records are confidential. We have already said this claim is credible. Because the absence of the records in this case does not support the inference that the records disfavored the State, drawing an adverse inference is inappropriate. 2 McCormick on Evidence 184-189 (John William Strong, ed., 4th ed. 1992). We deny PSEA’s motion.

2. PSEA’s motion for a directed verdict on the basis that the State did not meet its burden of going forward.

PSEA moved for a directed verdict after the State concluded the initial showing that was required under the hearing examiner’s ruling on the burden of proof. ASEA joined in the motion. Only two of the Panel members were present at the hearing to consider the motion. Neither a grant or denial of the motion was supported by a quorum. PSEA renewed its motion at the conclusion of the evidence.

To understand PSEA’s motion for a directed verdict, one must understand the procedural history in this case. In motion practice before the hearing, PSEA moved to shift the burden of proof from PSEA as petitioner to the State as the party seeking to disrupt the status quo. The hearing examiner determined,

[I]f no evidence is introduced on the supervisory status of a correctional officer, the status quo will control and the position will remain in the bargaining unit. However, if a party introduces evidence tending to support the supervisory status of a position, PSEA, as petitioner, has the burden to prove that the position appropriately is in the unit, i.e., is not a supervisor.

Order, Burden of Proof, at 3 (May 27, 1997).

Decision and Order No. 211 required the parties to look at the supervisory status of the correctional officers to insure that the correctional officers unit complied with 8 AAC 97.090, which prohibits combining supervisory with nonsupervisory personnel. The State asserts that 98 of the correctional officers III are supervisors. Because the State has custody of the documents that would serve as evidence in the case -- position description questionnaires and supervisory questionnaires, among other things -- and control over the potential witnesses-- the incumbents and their supervisors -- assigning the State the burden to go forward with that evidence is reasonable. However, the ultimate responsibility to prove, i.e., persuade, that the unit is appropriate must remain with the petitioner. 8 AAC 97.350(f) requires it. The effect of the hearing examiner’s order is that, if no evidence were introduced on the supervisory status of a correctional officer, the status quo would control and the position would remain in the correctional officers unit. However, if evidence were introduced tending to support the supervisory status of a position, PSEA, as petitioner, would have the burden to prove that the position appropriately remained in the unit, i.e. was not a supervisor. See e.g., Alaska State Employees Ass’n, AFSCME, Local 52, AFL-CIO (Raymond Johnson) v. State, Decision & Order No. 193, at 13 (Sept. 26, 1995), quoting NLRB v. Wright Line, 662 F.2d 899, 902, 108 L.R.R.M.(BNA) 2513, 2517 (1st Cir. 1981), cert. den’d, 444 U.S. 989, 109 L.R.R.M.(BNA) 2779 (1982) (shifting burden of going forward). The order did not shift the burden of proof; it shifted the burden of going forward. The burden of proof remains with the complainant,⁷ or petitioner as in this case. Shifting the burden of going forward responds to the problems PSEA set out in its brief while honoring the clear language of 8 AAC 97.350(f).

The basis of PSEA’s motion for a directed verdict is its contention that the State did not meet its burden of going forward and, consequently, the 98 correctional officers should remain in the unit. Neither the PERA nor the regulations adopted under it expressly provide for a motion for a directed verdict. The procedure, which appears in Civil Rule 50, is a device to remove factual disputes from the jury. It allows a trial judge to decide a factual issue when the judge concludes that the evidence would permit fair minded jurors to reach only one result. Martinez v. Bullock, 535 P.2d 1200 (Alaska 1975).

Because this is an administrative proceeding, PSEA’s motion would not remove factual issues from a jury, and calling it a motion for a directed verdict may be a misnomer. But PSEA’s objective is similar to the objective of Civil Rule 50. It seeks to cut short the normal procedure for determining a factual dispute--in this case a determination that the correctional officers III are not supervisors--before all of the parties present their evidence. PSEA argues that the State failed to meet its initial burden of going forward; because there was no evidence in the record challenging the supervisory status of the correctional officers, the status quo should control and the correctional officers III should remain in the unit. As further justification PSEA points out that a decision at the conclusion of the State’s initial case would have promoted the economy of the parties and the system. It would also avoid the risk that PSEA or ASEA would establish the State’s case inadvertently while attempting to rebut it.

On the other hand, motion practice can complicate administrative procedures and have the opposite of the intended effect of simplifying or expediting a decision. While we have reservations about cutting a hearing short, we note that PSEA has presented a strong case for its motion. The State’s case was limited to the submission of the position description questionnaires for 98 correctional officers III and the testimony of two witnesses: the deputy director of the division of institutions and the State’s position classification expert. We have said that the PDQ is a key document in determining the supervisory status of a State employee. State v. Alaska State Employees Ass’n, AFSCME Local 52, AFL-CIO, Decision & Order No. 219, at 46. But in this case ASEA and PSEA attacked the credibility of the PDQs convincingly.

In considering this motion, we must review the evidence in the light most favorable to the State. In addition to the PDQs, the State provided the testimony of Allen Cooper, Deputy Director of the Division of Institutions. His testimony set out the important role of the shift supervisor as the front line supervisor at the facility. The shift supervisor is on site when an emergency occurs and must take command. The shift supervisor is responsible to see that the staff is doing its job. In the absence of the assistant superintendent or superintendent, the shift supervisor is the senior staff member at the correctional facility. Tr. 42. Cooper’s testimony supports the finding that the shift supervisor is a lead worker. Cooper did not provide any testimony on direct examination that would support a finding that the shift supervisors perform the supervisory functions set out in 8 AAC 97.990(a)(5). On cross-examination he established affirmatively that correctional officers do not perform supervisory functions. For example, regarding the discipline function, Cooper testified that the only person who can terminate an employee is the director of the division of institutions. Tr. 58. A superintendent can discipline an employee by suspending the employee up to 15 days. Id. Finally, he testified that a correctional officer III would write up an incident or problem. E.g., Tr. 62. The implication is that the correctional officer III is not responsible to respond to the incident or problem, including any discipline if appropriate. The duty is to report it.

Michael McMullen, Personnel Manager II and the State’s position classification expert, also testified. He set out how the PDQs for the correctional officers III were prepared before this hearing, but McMullen has no first hand knowledge of the facts set out in the PDQs. The State’s classification section relied upon information provided by the department to recommend unit placement. Tr. 148; 177. Larry Wade is the State’s employee who does the reviews and recommends unit placement and he did them for the correctional officers III. Tr. 146; 184. Wade did not review any other information to insure the accuracy of the representations in the PDQs. Tr. 176. The department’s information was presumed accurate. Tr. 182. The general procedure was for the incumbent in the position to complete pages 1 through 6 of the PDQ. The incumbent’s supervisor then completed the form. The 98 PDQs offered by the State are the official PDQs for these 98 correctional officers III positions. Tr. 153-154. Of the 118 correctional officer PDQs reviewed, the classification section concluded that 98 were supervisory employees. Tr. 153.

Nevertheless, deficiencies in the PDQs are apparent. The incumbents would not sign them in some cases. Tr. 171-173, reviewing Exhs. 709, at 6 and 710, at 6. McMullen stated that an employee’s signature was not a critical element of the classification section’s review; he was not surprised that some employees would not sign them because the issue of supervisory status had become controversial. See Tr. 215-216. In one institution, Cook Inlet Pretrial, only one of eight officers signed the PDQ. Exhs. 708-716. Another employee submitted a rebuttal on his supervisory assessment. Exh. 739. Despite the refusal to sign and the controversy surrounding the unit determinations, the classification staff did not perform any desk audits. One of the reasons, according to McMullen, was that there was not enough time. Tr. 173; 207 Another reason was that, although the Department of Administration’s policy and procedure manual, Exh. 835, at 20.15,⁸ states that a desk audit is desirable, staffing cuts had prevented staff from performing desk audits as it had in the past. Tr. 179. McMullen also questioned the ability of the incumbents to assess their own supervisory authority because the determination involves knowledge and background that the correctional officers do not have.

We perceive that the Department of Administration was under time pressure to complete the review of the PDQs. The department may have taken short cuts. Certainly it appears to have relied on information from the Department of Corrections that was inaccurate. There is some evidence that the department valued consistency over accuracy. Exh. 831; Tr. 221 (memorandum, later disapproved, directing employees to complete the supervisory questionnaire in a certain manner-- providing authority level 2 for "appoint," "promote," "transfer," and "take disciplinary action" and level 3 for "discharge" and "settle grievances"). A large number of the PDQs did follow the pattern set out in this memorandum. Exhs. 702-707, 729-741, 743, 751-797.

To illustrate the problems with the PDQs, we note that a number of employees were rated level 3 for discharge. Other evidence showed that authority to discharge was retained at the very highest level -- the director of the division of institutions after concurrence from the deputy commissioner of corrections. Tr. 58. Level 3, however, should indicate that the correctional officer makes a recommendation to his or her immediate supervisor, usually an assistant superintendent, who makes the decision and directs the officer to take action. Employees were also rated level 3 for "settle grievances," yet their role in grievances on behalf of management is restricted under the general government unit collective bargaining agreement. Most of the employees under the director of correctional officers III are also in the general government unit. The agreement requires that a grievance be filed at the first level supervisor outside of the bargaining units. Exh. 836, at 30. A rating of level 2 for "appoint" was common. Level 2 authority means "Employee discusses decision with me and then takes action." But the evidence by the State’s witness was that any participation in hiring was limited to participation on hiring committees and even that practice had stopped. Tr. 96-97; 108.

Serious and substantial questions were raised about the trustworthiness of these PDQs. Taking our reservations about the trustworthiness of the PDQs into account when assessing the weight to give the PDQs’ representations about supervisory duties, we must find that the PDQs do not provide evidence we may rely upon to find the correctional officers III supervisors under 8 AAC 97.990(a)(5). At the time of PSEA’s motion, even when reviewing the record in the light most favorable to the State, the record does not tend to support the conclusion that the correctional officers III perform supervisory functions and we conclude that the State did not meet its burden of going forward. Accordingly, the status quo controls, and the 98 correctional officers III are not supervisory employees under 8 AAC 97.990(a)(5).

We grant PSEA’s motion.

3. ASEA’s request for clarification of Decision and Order No. 211: bypassing any hearing on supervisory or confidential status of correctional officers III and proceeding directly to an election.

On March 12, 1997, ASEA requested reconsideration of our first decision and order in this case. It sought an immediate election with all of the correctional officers III participating by voting unchallenged ballots. Decision and Order No. 211 had directed the parties to address the supervisory status of the correctional officers III, but if the parties could not agree on the supervisory status, it directed an expedited hearing on that issue. The parties did not agree, and ASEA made its motion when the parties and the Agency were proceeding either to an election allowing all correctional officers to vote subject to challenge on the basis of supervisory status or to a hearing to determine supervisory status with an election to follow in which only nonsupervisory correctional officers participated.

None of the parties had disputed the supervisory status of any of the correctional officers at the first hearing in this case, but there was evidence suggesting that at least some correctional officers III had supervisory authority that should prevent their inclusion in the bargaining unit under 8 AAC 97.090(a)(1). This Agency had earlier considered Munson v. State, Decision & Order No. 206, involving a correctional officer III with apparent disciplinary authority over other correctional officers consistent with a conclusion of supervisory status under 8 AAC 97.990(a)(5), although the case did not consider the question.⁹ The duty of the Agency to certify "appropriate" bargaining units required some exploration of this issue. AS 23.40.090; 23.40.100.

The State then challenged the supervisory status of a number of the correctional officers III -- 98 of 118. The problem with ASEA’s proposal is that it would have the Agency proceed to an election with the voting eligibility of a significant number of the participants at issue -- 98 of about 750. Unless the election were very one-sided, there was some risk that the election would be invalid if enough voters were later determined ineligible. Because the invalid ballots could not be identified and segregated under ASEA’s motion, the election would have to be repeated. Moreover, allowing ineligible employees to participate in an election is inconsistent with the principle of self-determination embodied in AS 23.40.070.

In addition, we note the State’s argument that the motion was untimely when made. The time for appeal and reconsideration had passed long before ASEA’s March 12 motion. ASEA’s motion is denied.

4. PSEA’s request for clarification of Decision and Order No. 211: the ballot choices.

On March 21, 1997, petitioner PSEA filed a request for clarification of Decision and Order No. 211. The decision ordered an election among three choices -- PSEA, ASEA, and no bargaining representative. Apparently, PSEA had understood the order to require a self-determination election permitting correctional officers to choose among a new correctional officers unit represented by PSEA, the existing general government unit represented by ASEA, or no representation at all. PSEA sought clarification of the order to require an election between PSEA as representative of a correctional officers unit or ASEA as representative of the general government unit. PSEA also maintains that the choice "no bargaining representative" should not be on the ballot. Intervenor ASEA opposed the request on March 25, 1997.

On January 16, 1997, the Agency issued Decision and Order No. 211, which ordered:

1. The petition of the Public Safety Employees Association to sever the correctional officers from the general government unit and create a separate correctional officers bargaining unit is GRANTED.

2. The unit is described as follows:

Included: All corrections officers I, II, and III;

Excluded: Any supervisory and confidential employees under 8 AAC 97.990 and all other State employees.

3. If the parties cannot agree to the composition of the unit as defined in paragraph 2, this agency will hear the question of unit composition on an expedited basis;

4. After any questions about the composition of the unit are resolved by agreement or agency decision, the petition should proceed to an election under AS 23.40.100, 8 AAC 97.025, and 8 AAC 97.030.

5. The ballot choices are Public Safety Employees Association; Alaska State Employees Association, AFSCME Local 52, AFL-CIO; and no bargaining representative.

6. 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. [Id., at 29.]

Agency staff had been proceeding to an election for a new bargaining unit with three ballot choices: PSEA, ASEA, and no bargaining representative. The sample election documents mailed to the parties on Friday, February 14, 1997, show the voting unit as including correctional officers I, II, and III and excluding confidential, supervisory, and other employees. The proposed sample ballot shows the three choices and does not inform voters of any impact of their choice on the composition of the bargaining unit. While the absence of this information could mean there was no impact and the voting unit was the bargaining unit regardless of the choice of representative, this fact was not explicit on the document, and PSEA did not object to the documents except to request the removal of the ballot choice "no bargaining representative."

On March 5, 1997, after a preelection conference on March 3, 1997, PSEA by letter alerted the hearing examiner to its discovery of a conflict between the parties about how the Agency was conducting the election: ASEA believed it was participating in an election in a new bargaining unit of correctional officers and PSEA had thought the Agency would be conducting an election allowing the employees to choose their bargaining unit along with the bargaining representative as set out in the National Labor Relations Board’s Casehandling Manual at ? 11090.1. The hearing examiner advised in writing that the documents were consistent with an election in a new bargaining unit, which was consistent with PSEA’s representation of ASEA’s understanding of the election.

PSEA’s argument is that the NLRB would conduct a Globe-type or self-determination election under the circumstances of this case; because this Agency looks to the NLRB generally, 8 AAC 97.450(b), and specifically applies NLRB law in petitions to sever new bargaining units from existing units, Mallinckrodt Chemical Works, 162 N.L.R.B. No. 48, 64 L.R.R.M.(BNA) 1011, 1016 (1966), quoted in Decision & Order No. 211, at 24, the Agency should follow the NLRB’s lead.¹⁰ A Globe election would allow voters to choose between appropriate units.

ASEA, on the other hand, argues that a Globe election is not appropriate because the Agency in Decision and Order No. 211 unambiguously created a new unit. The only question for the voters should be, who will represent them. ASEA further argues that the more appropriate paragraph in the Casehandling Manual is the one governing unit clarification -- paragraph 11490.1.

The State maintains that the PSEA’s request for clarification is untimely.

Turning to PSEA’s argument, we see that the NLRB’s Casehandling Manual provides at paragraph 11090.1 for self-determination elections when a labor organization seeks to sever part of an established unit. These elections allow the employees to choose between labor organizations seeking severance and the existing representative in the existing unit. The choice of no bargaining representative does not appear on the ballot. Thus, the NLRB would provide quite a different election than the one set out in the Agency’s proposed election documents.

Generally this Agency is guided by the NLRB’s practices. It does not disregard clear precedent under the federal labor relations laws. We depart from that practice in this case because of significant differences between the federal law and the Public Employment Relations Act on severing units from existing bargaining units. Unlike the NLRA, AS 23.40.090 prohibits "unnecessary fragmenting." AS 23.40.090 requires that "bargaining units shall be as large as is reasonable." The impact of this requirement in a severance petition is to make it impossible to sever a unit if the larger, existing unit is reasonable or appropriate. A decision allowing severance necessarily requires a finding that the existing unit was an unreasonable or inappropriate unit. This key difference in PERA is taken into account in 8 AAC 97.025, which requires that a petition to sever a bargaining unit from an existing unit must show the existence of five factors. The factors in large part mirror the factors addressed in Mallinckrodt Chemical Works, the principal NLRB case on severance, but there are two differences. First, the petitioner must show why the employees are not receiving adequate representation in the existing unit. This requirement usually results in a presentation of the bargaining or grievance arbitration losses by the existing representative. The focus of the requirement, however, is not on the failure of the representative but on the failure of the unit structure. Any failings of a representative can be addressed in a petition to decertify the representative and would not require a petitioner to meet the additional burdens imposed on a petitioner seeking severance. Second, the petitioner must show that the petition will not result in excessive fragmentation. Because any severance would "fragmentize" or break up the existing unit, this requirement means the petitioner must show that severance is necessary. A petitioner who meets this burden has demonstrated that the existing unit is inappropriate.

It should be obvious that the Agency cannot proceed with an election that permits voters to choose an inappropriate bargaining unit. The flaw in PSEA’s argument is that the NLRB’s severance election is between two appropriate or valid choices. Mallinckrodt does not require that the larger unit be found inappropriate before the election can proceed. A petitioner need only show that the proposed craft unit is an appropriate one: does it consist of a distinct or homogeneous group of skilled workers; would the proposed unit be disruptive of stable labor relations; have the workers maintained a separate identity, does the history of bargaining in the industry support the proposed unit; and is the petitioner qualified to represent the proposed unit. See Decision & order No. 211, at 24-25. Absent from Mallinckrodt is the requirement in AS 23.40.090 that to be appropriate a unit must be the largest reasonable unit.

Other regulations support the Agency’s wording of the ballot. 8 AAC 97.080(a)-(c) and (f) provide automatic intervenor status to ASEA and require ASEA’s presence on the ballot. In addition, 8 AAC 97.150 requires that "no bargaining representative" appear on the ballot.

The ballot therefore will provide three options to members of a unit described as including correctional officers I, II, and III and excluding confidential, supervisory and other employees: PSEA, ASEA, and no bargaining representative.

Because of the importance of the issues raised, we have addressed them on the merits. However, PSEA’s request is untimely. Decision and Order No. 211 was issued on January 16, 1997. The time for appeal or reconsideration passed long before PSEA filed its March 7 letter calling the issue to the Agency’s attention.

5. Supervisory status of correctional officers III under 8 AAC 97.990(a)(5).

We have already decided that the State did not meet its burden of going forward. We have granted PSEA’s motion for a directed verdict. If we had made this ruling when PSEA first made its motion on July 15, the hearing would have ended. However, we did not rule then. The hearing continued an additional six days. PSEA and ASEA offered the testimony of a number of correctional officers and offered many additional exhibits, and the State was provided an opportunity for rebuttal. Because the hearing did proceed and the parties were provided an opportunity to present their entire case, we now address the question of the supervisory status of the 98 correctional officers III on the basis of the entire record.

We note that we already concluded in Decision & Order No. 211 that correctional officers I, II, and III were an appropriate unit under AS 23.40.090. But we further note that the record in this case supports that conclusion as well. There is evidence in this record to support the conclusion that correctional officers I, II, and III are an appropriate unit under all of the factors set out in AS 23.40.090. Findings of Fact Nos. 6-12.

This hearing was set to hear the issue whether 98 of the correctional officers III are supervisory employees under 8 AAC 97.990(a)(5). The issue of the supervisory status of correctional officers was not developed in the first hearing although some evidence in that hearing suggested that some of the correctional officers III performed supervisory functions. The parties were unable to agree whether any of the correctional officers should be excluded from the unit as supervisory employees. PSEA and ASEA maintain that none of the positions are supervisory. Although the positions do not have any history in the supervisory unit, the State took the position that 98 of the 118 correctional officers III were supervisors. The issue of the supervisory status of correctional officers has been controversial in the past. See Munson v. State, Decision & Order No. 206 (Sept. 20, 1996), and Munson v. ASEA, Decision & Order No. 207 (Sept. 23, 1996). The facts in those cases included a correctional officer III who was a shop steward who appeared to exercise supervisory authority over at least one member of the general government bargaining unit he helped represent. A concern of the State in this case seems to be that splitting correctional officers III between two bargaining units would cause problems for the State by restricting its staffing flexibility. Tr. 52; 89.

We conclude that the overwhelming weight of the evidence supports the conclusion that 98 correctional officers III are not supervisory employees as that term is defined by regulation and they should remain in a single bargaining unit with correctional officers I and II and the remaining correctional officers III.

The definition of "supervisory employee" appears in 8 AAC 97.990(a)(5), which provides:

"supervisory employee" means an individual, regardless of job description or title, who has authority to act or to effectively recommend action in the interest of the public employer in any one of the following supervisory functions, if the exercise of that authority is not merely routine but requires the exercise of independent judgment:

(A) employing, including hiring, transferring, laying off, or recalling;

(B) discipline, including suspending, discharging, demoting, or issuing written warnings; or

(C) grievance adjudication, including responding to a first level grievance under a collective bargaining agreement.

8 AAC 97.990(a)(5) defines supervisory employee as the authority to perform three functions--employing, discipline, or grievance adjudication. Each of these functions is described with several examples. The examples provide an illustration of the function and are not intended to be exclusive. Thus, we attach much less significance to the omission of the word "promote" to illustrate "employing" than PSEA does. PSEA Closing Argument Brief, at 27. The examples of the function "employing" all show authority over the filling of a position: "hiring, transferring, laying off or recalling." The responsibility to perform these tasks would seem to require similar authority and discretion as the promotion of an employee.

To perform a supervisory function, the employee must have the authority to act or to effectively recommend action. The definition also requires the exercise of independent judgment or discretion. These requirements should cover as supervisors those employees who are the genuine decision makers even though final authority may reside at a higher level.

The evidence as a whole supports the conclusion that the supervisory role of correctional officers III is quite limited and generally restricted to shift supervisors who function as lead workers. In rare instances a correctional officer III may have made recommendations in the areas of employing or discipline but the correctional officers III do not effectively recommend. Their recommendations do not appear to have been provided any weight and are not incorporated into the employing or discipline scheme of the division.

The class specification¹¹ for corrections officer III supports our conclusion. It describes the distinguishing characteristics of the position:

This is the lead level class with responsibility for the work of Correctional Officers I and II on a shift in an adult correctional institution. May serve as instructor at the Staff Development Training Center as temporary duty assignment. May supervise those staff who function as prisoner transport officers and act as the departmental coordinator for prisoner transports. Also could perform duties as a section of subunits (security, compliance monitoring, commissary, living visits, etc.) in a correctional facility. This class is distinguished from Correctional Officer II by the latter’s role as the working level.

Exh. 802, at 1. Included in the examples of work are lead duties:

Leads the work of Correctional Officers I and II by making general inspections to see that rules and regulations are being served, and that institutional programs are being carried out in a satisfactory manner. . . .

May be responsible for the operation of the institution on a particular shift when administrative superiors are absent.

Conveys to superiors complaints made by Correctional Officers and prisoners; takes, receives and checks periodic counts of prisoners. . . .

Reports infractions of rules and regulations and irregular or suspicious occurrences; takes or recommends appropriate action. . . .

Schedules employee shifts, reviews reports submitted by subordinates, and confers with administrative superiors about unusual problems. Compiles and submits daily activity reports to superiors. . . .

May supervise the departmental prisoner transport unit/staff. Coordinates efforts between agencies. Performs administrative functions related to staff, reports, budgets, records, travel arrangements, and communications.

Id., at 1-2. These duties are consistent with the role of correctional officers III as lead workers but they do not support the conclusion that these employees employ, discipline, or adjudicate grievances.

The class specification for correctional officers III covers several different assignments or working titles. Tr. 151. One assignment is the Cleary compliance officer. "Cleary" refers to a court case brought by inmates about conditions in Alaska’s correctional institutions, Exh. 830, and a Cleary officer insures that the institutions comply with the requirements of that case. The responsibility is prisoner related and would not normally require the supervision of other State personnel. Tr.109. Another assignment is training sergeant. The training sergeant should be distinguished from the field training officer. Field training officers are certified by the police standards council to work with newer correctional officers to insure that they meet required standards. The field training officers may be correctional officers II and they work closely with shift supervisors to train a probationary correctional officer I. They do not have a role in the selection of a candidate to fill a correctional officer position but they do play a part in whether that person completes probation and becomes a journey level correctional officer -- a correctional officer II. Tr. 110. A training sergeant is responsible for all staff training and to maintain training records and may assign new correctional officers to a field training officer. Exh. 744, at 3. Still another assignment is security officer. They are responsible for the overall security of the facility but do not appear to supervise directly any other employees. Exh. 738, at 10; Tr. 955. Correctional officers III may be assigned as a records sergeant. Supervisory duties would not seem to be necessary. Exh. 743. Other working titles are inmate services sergeant and special projects sergeant.

The most important assignment for our purposes is the shift sergeant or shift supervisor. These correctional officers III provide the strongest case for supervisory status. The shift supervisor directs the work of the correctional officers assigned to his or her shift. They are responsible for duty rosters and for evaluations. Tr. 38; 41. They assign correctional officers to the various posts on their shift. Tr. 1364. These duties are consistent with a lead worker but not with the three supervisory functions in 8 AAC 97.990(a)(5).

Focussing on the supervisory functions in 8 AAC 97.990, we turn first to the employing function. Any authority correctional officers III may have had to hire is based on two circumstances. Some correctional officers may have served on a hiring committee and participated in making a recommendation to hire to the superintendent or assistant superintendent. While the deputy director indicated that, under the current policy of the Department of Corrections, correctional officers do not participate in hiring, Tr. 96-97, correctional officers in the past may have had an opportunity to serve on a hiring committee. The committee would interview the candidates for a position, often using prepared questions, and provide a report or recommendation to the superintendent or assistant superintendent who would make the decision to hire. The superintendent of Spring Creek Correctional Center indicated this practice continues at this facility. Tr. 1361. He described it by stating that two or three sergeants may be assigned to an interview committee. They are provided questions and they discuss the candidates’ qualifications. The recommendations of the committee are generally followed. Tr. 1358-1359. While the superintendent clearly values the contribution of the correctional officers III in the process, we cannot conclude that they exercise independent judgment or effectively recommend the hire of a State employee.

The predecessor to this labor relations agency, the State Labor Relations Agency, considered whether serving on a hiring committee supported a determination of supervisory status. It held in In re Supervisory Unit Clarification, Order & Decision No. 123, at 8 (Aug. 28, 1989), that such service did not demonstrate the authority to appoint, stating:

The Agency has determined that the supervisor must have independent authority to appoint. Participation as a co-equal on a committee manifests a conclusion by management that the incumbent does not have independence to engage in that appointment. If management desires an employee to be a supervisor then it needs to delegate that authority; if management concludes that it wishes to withhold or maintain in a committee setting authority to appoint, then it has withheld supervisorial status to the incumbent as to that criterion.

We agree. Participation on a hiring committee, particularly where that participation is limited to asking prepared questions and to making a group recommendation to a higher level authority, does not demonstrate the exercise of independent judgment required in the current definition of "supervisory." Service on a hiring committee is unrelated to a particular correctional officer’s work duties or any other supervisory obligations. Shift supervisors, for example, do not have a role in the selection of the employees they direct on their shift. Tr. 97; 1441. For example, at one facility, Spring Creek, the responsibility to fill positions belongs to an assistant superintendent. Tr. 1441. The correctional officers chosen to participate on a hiring committee seem to have been chosen on the basis of availability, rather than on any other supervisory responsibilities they might have. Shift supervisors did not generally participate in hiring committees. Their work and work schedules interfered with service on a hiring committee. The practice of including correctional officers III on hiring committees, which has been discontinued except at Spring Creek, does not demonstrate authority to employ. Tr. 108.

The second circumstance that may suggest the authority to employ is the flexing of a correctional officer I to a correctional officer II. The correctional officers III serving as shift supervisors evaluate the correctional officers under their direction. The evaluation of a correctional officer I is particularly important because the effect of a positive evaluation is that the officer meets probation and becomes a correctional officer II, the journey level correctional officer. The effect of an unsatisfactory evaluation is the failure to make probation and ultimately the loss of the position. Tr. 41; 98; 103-104. In evaluating the correctional officer I, the shift supervisor consults with the field training officer, usually a correctional officer II, assigned to the correctional officer I and then recommends whether the officer met probation. Tr. 105; 1362. This recommendation is routinely followed. Tr. 104; 1363-1364; but see 938. The predecessor agency did conclude that this responsibility was the authority to promote, which was one of the six listed supervisory functions in an earlier version of the supervisory definition. In re Supervisory Unit Clarification, Order & Decision No. 123, at 8.

The definition of "supervisory employee" has been revised since the State Labor Relations Agency’s 1989 decision. The SLRA determined whether an employee performed four of six supervisory functions -- employ, promote, transfer, suspend, discharge, and adjudicate grievances. 2 AAC 10.220(b)(3) (repealed eff. July 22, 1993). On the other hand, in 8 AAC 97.990(a)(5) we examine whether employees have authority to act or effectively recommend in one of three broad categories of responsibility -- employing, discipline, or adjudication of grievances. The sole authority any of the correctional officers have in the area of employing is the consequence of the responsibility to evaluate the employees on their shift. Evaluation was rejected as a criteria indicating supervisory status. The correctional officers do not have any authority to hire or appoint, transfer, lay-off, or recall employees. We cannot conclude that the consequence of an evaluation, although it may result in a promotion, is sufficient to find that a shift supervisor has authority to act or to effectively recommend action in the area of employing.

Turning to the area of discipline, we note that correctional officers III do not have the authority to suspend, discharge, or demote employees. Moreover, the evidence did not suggest that the department makes a practice of soliciting or following their recommendations to suspend, discharge or demote employees. The final illustration of authority to discipline in 8 AAC 97.990(a)(5) is the authority to issue written warnings. A correctional officer III may participate in events that lead to the issuance of a written warning. A shift supervisor, for example, may send an incapacitated employee home. Tr. 83; 947. The duty of the shift sergeant is to report such incidents to the assistant superintendent or superintendent. Tr. 97; 949; 951; 1350. An incident may result in discipline. In some cases the correctional officer III may implement the discipline, for example, by issuing a written warning. The correctional officer III, however, does not as a general rule participate in the decision to impose discipline. Tr. 97; 99. The role that shift supervisors play in discipline of other employees does not demonstrate the exercise of independent judgment. We conclude that the correctional officers III do not have authority to act or effectively recommend in the discipline function.

The final supervisory function in 8 AAC 97.990(a)(5) is the authority to adjudicate grievances. Correctional officers do not have any authority to adjudicate grievances in the interest of the State. Tr. 1368. The only role in grievance adjudication that appears in the record is the role that some correctional officers have as shop stewards to handle grievances in the interest of other members of their bargaining unit.

In conclusion, the record reviewed as a whole supports the conclusion that the 98 correctional officers do not have supervisory authority under 8 AAC 97.990(a)(5).

Conclusions of Law

1. The State of Alaska is a public employer under AS 23.40.250(7).

2. The Public Safety Employees Association and the Alaska State Employees Association/AFSCME Local 52, AFL-CIO, are organizations under AS 23.40.250(5).

3. This Agency has jurisdiction under AS 23.40.100.

4. Because the State has custody of the documents that could serve as evidence, has control over potential witnesses, and is the party seeking to change the status quo, the State has the burden of going forward with evidence tending to show the supervisory status of a position. However, once the State offers evidence tending to show a position’s supervisory status, PSEA, as the petitioner, has the burden to prove each element of its case by a preponderance of the evidence. 8 AAC 97.350(f).

5. After review of the subpoenas issued by the hearing examiner and consideration of the State’s appeal of those subpoenas, we conclude that the information sought would tend to prove or disprove facts at issue in this case and is therefore relevant. We further conclude that the State has valid security concerns. We affirm the issuance of the subpoenas, amending them to exclude from production any information addressing such State security concerns as key locations, emergency procedures, and riot, hostage, and escape. We require the State to redact from the documents specific information that would compromise the security of the institutions. We also amend the subpoenas to exclude from production medical or other private information about inmates.

6. The ASEA’s motion in limine to bar the admission of the State’s evidence is denied because the appropriate response to a refusal to produce subpoenaed documents is to enforce the subpoena in superior court under AS 23.40.160(d).

7. Because the State’s refusal to produce the documents under subpoena does not necessarily support the inference that the documents were adverse to the State, we decline to draw an adverse inference against the State for refusing to disclose.

8. Correctional officers who meet the definition of "supervisory employee" in 8 AAC 97.990(a)(5) must be excluded from a unit of nonsupervisory correctional officers under 8 AAC 97.090(a)(1). Decision and Order No. 211.

9. At the conclusion of the first day of the hearing, when PSEA first moved for a directed verdict, the record did not tend to support the conclusion that the correctional officers III perform supervisory functions, even when the record is reviewed in the light most favorable to the State. We therefore conclude that the State did not meet its burden of going forward. Accordingly, the status quo controls and the 98 correctional officers III are not supervisory employees under 8 AAC 97.990(a)(5).

10. Under the definition of "supervisory employee" in 8 AAC 97.990(a)(5), none of the correctional officers III are "supervisory employees" because they do not have the authority to act or to effectively recommend in the areas of employing, discipline, or grievance adjudication in the interest of the State requiring the exercise of independent judgment.

11. Because the 98 correctional officers III are not "supervisory employees," they do not share a community of interest or working conditions with the members of the supervisory unit and, under AS 23.40.090, are not appropriately in the supervisory bargaining unit.

12. Because the 98 correctional officers III share a community of interest, wages, hours, working conditions, and a history of collective bargaining with other correctional officers I, II, and III and because a significant sample of the correctional officers III expressed a preference for placement in a correctional officers bargaining unit, we conclude that the correctional officers III are appropriately members of the correctional officers unit.

13. ASEA’s request for clarification of Decision and Order No. 211 to direct an election among all correctional officers voting unchallenged ballots before a hearing determining the supervisory status of the 98 correctional officers III at issue is denied as inconsistent with AS 23.40.070, 23.40.090, and 23.40.100. Moreover, the request was made on March 12, 1997. This was past the time for appeal or reconsideration, and ASEA’s request was untimely.

14. PSEA’s request for clarification of Decision and Order No. 211, which was issued on January 16, 1997, was made on March 21, 1997. Even the date PSEA first notified the Agency of the issue, March 5, 1997, was past the time for appeal or reconsideration, and PSEA’s request was untimely.

15. The election ballot must provide three choices of bargaining representative for a correctional officers unit: PSEA, ASEA, and no bargaining representative. The choice elected will not affect the composition of the unit, which in all cases is the appropriate unit of all correctional officers I, II, and III.

ORDER

1. We amend the subpoenas issued before July 7, 1997, to exclude from production any information addressing such State security concerns as key locations, emergency procedures, and riot, hostage, and escape, and order the State to produce all documents within the scope of the request, redacting that information compromising the security of the institutions and any medical or other private information about inmates.

2. Because there are no supervisory correctional officers, the unit of correctional officers is composed of all correctional officers I, II, and III.

3. An election under AS 23.40.100, 8 AAC 97.025, and 8 AAC 97.030 should proceed among the members of the correctional officers unit.

4. The ballot choices are Public Safety Employees Association; Alaska State Employees Association, AFSCME Local 52, AFL-CIO; and no bargaining representative.

5. 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

Blair E. Schad, Board Member

Robert A. Doyle, Board Member

Karen J. Mahurin, 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 PUBLIC SAFETY EMPLOYEES ASSOCIATION vs. STATE OF ALASKA, DEPARTMENT OF CORRECTIONS and ALASKA STATE EMPLOYEES ASSOCIATION/ AFSCME LOCAL 52, AFL-CIO, CASE NO. 95-379-RD, dated and filed in the office of the Alaska Labor Relations Agency in Anchorage, Alaska, this 24th day of November, 1997.

Cynthia J. Teter

Administrative Clerk III

This is to certify that on the 24th day of November, 1997, a true and correct copy of the foregoing was mailed, postage prepaid to

James Gasper, PSEA

Kent Durand, State

Don Clocksin, ASEA

Signature

¹ March 21 is the date of PSEA’s formal request. It first called the issue to the attention of the hearing examiner by letter dated March 5, 1997.

² Members Doyle and Mahurin were present at the hearing on July 15, 1997, the first day of the hearing.

³ Kathleen Strasbaugh, assistant attorney general, entered a limited appearance for respondent to address the issue of the subpoenas and the production of documents.

⁴ Jan Hart DeYoung’s work on this decision concluded on November 14, 1997.

⁵ In contrast, the Administrative Procedures Act in AS 44.62.440 allows discovery under the Civil Rules upon a showing of good cause.

⁶ NLRB procedures do not authorize prehearing discovery, and subpoenas are available only to compel the attendance of witnesses and the production of documents at a hearing. The NLRB’s Casehandling Manual provides that investigative subpoenas are not available to the parties. They are solely for the director’s investigation of charges. NLRB Casehandling Manual ? 10292; see Labor Management Relations Act, § 11, 29 U.S.C. § 161(2) (West 1997).

⁷ See also 29 C.F.R. § 101.10, which assigns the burden of proof in an unfair labor practice charge to the government, which prosecutes the charges.

⁸ Apparently the manual was rescinded shortly before the hearing on July 1, 1997. Tr. 196.

⁹ The correctional officer III in that case issued a letter of instruction, which was placed with the approval of the assistant superintendent in the personnel file of a correctional officer II. Munson v. State, Decision & Order No. 206, at 8 & 10 (1996). However, the superintendent of the facility involved, Spring Creek Correctional Center, testified in this proceeding that letters of instruction are not discipline. He further stated that letters of instruction are not placed in the personnel files. He distinguished them from written warnings, which are disciplinary action and require the approval of the superintendent of the facility. Tr. 1366-1367.

¹⁰ The superior court recently disapproved of the Agency’s reliance on Mallinckrodt Chemical Works, 162 N.L.R.B. No. 48, 64 L.R.R.M.(BNA) 1011 (1966). Public Safety Employees Ass’n v. State, No. 3AN-96-09448 CI, slip op., at 6 (Super. Ct., Oct. 5, 1997), appeal pending.

¹¹ The State’s exhibit list shows the class specifications as exhibit 701. An exhibit with that number was not filed in connection with this hearing. However, the exhibit was admitted as ASEA’s exhibits 801 and 802, and during the first hearing as PSEA’s exhibit 2, at 9-11, and State’s exhibit D.

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