CASE NO. 97-741-CBA

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. 97-741-CBA

DECISION AND ORDER NO. 234

Digest: AS 23.40.210, which authorizes the Agency to enforce collective bargaining agreements, does not substitute for the grievance arbitration procedure in the parties’ collective bargaining agreement. The parties must exhaust their contract remedies before the Agency will enforce the agreement under AS 23.40.210.

DECISION

Statement of the Case

On April 25, 1997, the Alaska State Employees Association, AFSCME Local 52, AFL-CIO (ASEA), filed this petition to enforce its collective bargaining agreement with the State, asking this Agency to enforce an arbitrator’s award dated July 26, 1993, for payment of overtime under the Fair Labor Standards Act to engineers I in the design and construction division of the Department of Transportation. On May 20, 1997, the State responded, denying the charges. The petition was heard on October 7, 1997. At the hearing the parties disclosed that ASEA also filed a grievance related to the dispute.

The record closed on October 7, 1997.

Panel: Alfred L. Tamagni, Sr., Chair, and Robert A. Doyle, and Ray Smith, Members, participating after review of the record.

Appearances: Stan Hafferman, business agent, for petitioner Alaska State Employees Ass’n, AFSCME Local 52, AFL-CIO; Kent Durand, labor relations specialist, for respondent State of Alaska.

Procedure in this case is governed by 8 AAC 97.350. Hearing examiner Jan Hart DeYoung presided.

Issue

Should the Agency enforce an arbitration award issued in 1993 under the 1990-1993 collective bargaining agreement by requiring that engineers I be paid overtime under the Fair Labor Standards Act?¹

Summary of the Evidence

A. Exhibits.

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

1. In re Arbitration between Patrick Wittrock, et al., and State of Alaska (July 26, 1993) (Corbett, Arb.);

2. Letter of grievance resolution between ASEA and the State (June 11, 1993); and

3. A. Johansen, letter to affected employees (Feb. 20, 1997) (re. overtime eligibility); D. Hull, memorandum to J. Rider (Feb. 11, 1997) (FLSA follow-up, project engineers).

State of Alaska offered the following exhibits, which were admitted into the record.

S-1. Extract, ASEA/State Bargaining Agreement (1990-1993);

S-2. Extract, ASEA/State Bargaining Agreement (1996-1999);

S-3. L. Powelson, memorandum to human resource managers (June 24, 1996) (contract changes); and

S-5. Highlights of 1995-1999 GGU tentative agreements.

State of Alaska offered the following exhibits, which were not admitted into the record:

S-4. P. Gullufsen, Memorandum of Advice to Commissioner Joseph Perkins (June 13, 1997) (not admitted after objection); and

S-6. In re Arbitration between ASEA and Department of Fish and Game, State of Alaska (Aug. 29, 1997) (Dorsey, Arb.) (withdrawn).

B. Testimony.

The Alaska State Employees Ass’n, AFSCME Local 52, AFL-CIO, did not present any testimony. The State of Alaska presented the testimony of Lee Powelson, Human Resource Manger for the Department of Natural Resources, and Mike McMullen, Personnel Manager for the Department of Administration.

C. Agency case file. 8 AAC 97.410.

Findings of Fact

The panel, by a preponderance of the evidence, finds the facts as follows:

1. The Alaska State Employees Association/AFSCME Local 52, AFL-CIO (ASEA) is the recognized bargaining representative of the general government unit of State of Alaska employees.

2. The 1990-1993 State/ASEA collective bargaining agreement provided that overtime eligibility would be determined under the Fair Labor Standards Act (FLSA) unless otherwise provided in the agreement. Exh. S-1, at 7. The agreement also provided that employees in pay ranges 14-20 who had overtime rights under previous agreements or as a result of arbitration retained those rights. Id. In addition, Appendix E of the agreement sets out a number of job classifications eligible for overtime pay. Id., at 2. The job classification "engineers I" is unlisted.

3. The practice of the Division of Design and Construction in the Department of Transportation and Public Facilities was to request and obtain approval from the Department of Administration to pay seasonal overtime to its engineers I for summer highways work.

4. At some undisclosed time this practice stopped, and ASEA filed a grievance on behalf of these engineers I.

5. After a hearing on the grievance, the arbitrator concluded that the engineers I were overtime eligible. Exh. 1, at 23.

6. The arbitrator in his decision examined the work of the engineers I and the State’s pay practice under the "duties" and "salary" tests to determine overtime eligibility under the FLSA. He determined that the work of the engineers qualified them to be overtime exempt professionals under the duties test, but that the paying of overtime, basing pay on actual hours worked, and requiring engineers to record the actual hours worked precluded the engineers from satisfying the salary test. Id.

7. The arbitrator awarded the engineers I the overtime pay they had lost.

8. During bargaining for the successor agreement, a goal of the State’s negotiating team was to restrict overtime pay to employees eligible under the FLSA.

9. The 1996-1999 agreement provides for payment of overtime to employees eligible under the FLSA or as otherwise agreed between the State and ASEA. Exh. S-2, at 2. A State labor relations specialist explained the overtime provisions in the agreement to the State’s human resource managers by stating the agreement deleted the provisions maintaining overtime eligibility that certain employees had obtained in earlier agreements. Exh. S-3, at 9.

10. ASEA’s statement of the highlights of the 1995 and 1996-1999 agreements includes the statement. "Eligibility for overtime in accord with FLSA only." Exh. S-5, at 4.

11. ASEA and the State have agreed in writing to the payment of overtime to certain job classes, such as nurses I, II, and III, nurse II (psychiatric), nurse III (psychiatric), and fish and wildlife technicians I, II, and III (hatchery), but not for engineers I. Exh. S-2, at 5-6.

12. The State apparently continued to pay engineers I for overtime. In the meantime it assembled a committee to review the overtime eligibility of job classifications under the FLSA.

13. This review was completed in the fall of 1996, and engineers I were determined to be ineligible for overtime.

14. The record does not disclose whether this determination was communicated to affected employees or to the bargaining representative. The only communication in the record occurred somewhat later than the fall of 1996 and is ambiguous. In February of 1997, the Department of Transportation and Public Facilities notified employees of the northern region of the State that the new contract "may require" a determination that the following positions were ineligible for overtime: engineer I, engineer associate, engineering assistant III, or employees used as project engineers regardless of position title. Exh. 3.

Discussion

The ASEA brought this petition to enforce its collective bargaining agreement with the State, seeking the enforcement of an arbitration award issued in 1993. That award required the payment of overtime to engineers I employed in the Division of Design and Construction. ²

The arbitration award was issued under the 1990-1993 collective bargaining agreement. The arbitrator interpreted the 1990-1993 agreement to provide for payment of overtime to employees eligible under the federal Fair Labor Standards Act. The arbitrator applied two tests to determine eligibility under the FLSA--the duties test and the salary test. The arbitrator concluded that the employees performed the duties of professionals exempt under the FLSA. However, the arbitrator also found that the employees kept hours of their work, were disciplined for periods less than a pay period, and were paid overtime. Applying the salary test, the arbitrator concluded that the engineers I were overtime eligible, and he awarded them overtime.

The State apparently paid the award but subsequently determined, for the second time, that the engineers were no longer overtime eligible. The State made the determination effective December 16, 1996, but it is unclear whether the engineers I were notified. The one communication in the record is dated February 20, 1997, and tells employees in the northern region that certain named positions, including engineers I, "may" be ineligible for overtime under the "new labor contracts." The record is silent on whether the state provided any notice to ASEA that it had determined that the overtime status had changed. Such facts would be essential to a complete record if ASEA had filed an unfair labor practice charge, but it filed this matter as a petition to enforce the collective bargaining agreement.

The State’s position is that the 1996-1999 agreement changed the determination of overtime eligibility. The arbitrator’s decision under the 1990-1993 agreement was that engineers I should be paid overtime because they were eligible for overtime under the FLSA. The change to the overtime and premium pay provisions in the 1996-1999 agreement was the removal of certain "grandfather" rights to overtime. The agreement retained the requirement of eligibility under the FLSA. Since the arbitrator relied upon the FLSA when he decided that engineers I were eligible for overtime, it is unclear how the new agreement will affect their eligibility for overtime. But we overstep. The question of the eligibility of the engineers I for overtime arises under the 1996-1999 collective bargaining agreement and should be decided under the grievance arbitration procedure in that agreement.

The Public Employment Relations Act authorizes this Agency to enforce collective bargaining agreements upon a petition by a party to the agreement. AS 23.40.210(a). 8 AAC 97.510 sets out the procedure for petitioning for enforcement. It requires in subsection (4) that the petitioner state either that the petitioner has exhausted all rights under the grievance arbitration clause or that the clause does not apply to the dispute. This requirement insures that the parties to the agreement do not substitute the Agency for their dispute resolution procedure in the agreement. Fairbanks Fire Fighters Association, Local 1324, International Association of Fire Fighters v. City of Fairbanks, Decision & Order No. 142 (Aug. 7, 1992); Alaska Public Employees Association v. Alaska State Housing Authority, Decision & Order No. 133 (June 19, 1991).

When ASEA filed this petition, it indicated that the petition was to enforce an arbitration award. It also indicated that it had exhausted its rights under the previous agreement but not under the current agreement. Apparently ASEA also had filed a grievance under the current agreement but the pursuit of a contract remedy was not made known to the Agency until the hearing.

We therefore conclude that the ASEA has not exhausted its remedies under the applicable agreement and should exhaust the grievance arbitration procedure before petitioning this Agency to enforce the collective bargaining agreement. Our reasoning is that the issue whether the employees must be paid overtime must be determined under the current agreement. We recognize that an arbitrator has concluded that the engineers I were eligible for overtime pay. This decision, however, was issued under the 1990-1993 agreement. The 1996-1999 agreement governs whether they should continue to be paid overtime. This determination will require interpreting the terms of that agreement, which is the appropriate domain of an arbitrator.

This petition should be dismissed, and the parties should proceed with the grievance if they have not already done so.

Conclusions of Law

1. The State of Alaska is a public employer under AS 23.40.250(7), and the Alaska State Employees Ass’n, AFSCME Local 52, AFL-CIO, is a labor organization under AS 23.40.250(5). This Agency has jurisdiction under AS 23.40.210 to consider this petition.

2. Petitioner ASEA has the burden to prove each element of its case by a preponderance of the evidence. 8 AAC 97.350(f).

3. AS 23.40.210(a) provides that a party to a collective bargaining agreement has the right to enforce the agreement by petition to this Agency.

4. The procedure for petitioning the Agency to enforce a collective bargaining agreement appears in 8 AAC 97.510. That section provides in part that a party must state that the party has exhausted any rights under the collective bargaining agreement or that those rights do not apply. The reason is that the agency as a general rule does not substitute its procedures for the grievance arbitration clause under the agreement and requires the parties to exhaust any such rights.

5. This dispute over the overtime eligibility of a class of employee will require the application and interpretation of Article 22 of the parties’ current agreement. Such a question is appropriate for resolution under the grievance arbitration procedure in the parties’ agreement.

6. The petition should be dismissed.

ORDER

1. The petition of the Alaska State Employees Association/AFSCME Local 52, AFL-CIO to enforce the collective bargaining agreement is DENIED;

2. The State of Alaska is ordered to post a notice of this decision and order at all work sites where members of the bargaining unit affected by the decision and order are employed or, alternatively, serve each employee affected personally. 8 AAC 97.460.

ALASKA LABOR RELATIONS AGENCY

Alfred L. Tamagni Sr., Chair

Robert A. Doyle, Board Member

Raymond P. Smith, Board Member

APPEAL PROCEDURES

This order is the final decision of this Agency. Judicial review may be obtained by filing an appeal under Appellate Rule 602(a)(2). Any appeal must be taken within 30 days from the date of filing or distribution of this decision.

CERTIFICATION

I hereby certify that the foregoing is a full, true and correct copy of the order in the matter of ALASKA STATE EMPLOYEES ASSOCIATION/AFSCME LOCAL 52, AFL-CIO vs. STATE OF ALASKA, DEPARTMENT OF ADMINISTRATION, Case No. 97-741-CBA, dated and filed in the office of the Alaska Labor Relations Agency in Anchorage, Alaska, this 20th day of November, 1997.

Cindy Teter

Administrative Clerk III

This is to certify that on the 20th day of November, 1997, a true and correct copy of the foregoing was mailed, postage prepaid to

Stan Hafferman, ASEA Kent Durand, State

Signature

¹ The work of Jan Hart DeYoung on this case concluded on November 14, 1997.

²At the time of filing, ASEA also sought overtime payments to engineering assistants III and engineering associates. ASEA dropped these claims when the State reinstated these employees’ overtime eligibility.

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