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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Alaska State Employees Association v. State (10/15/99) sp-5193

Alaska State Employees Association v. State (10/15/99) sp-5193

Notice:  This opinion is subject to correction before publication in 
the Pacific Reporter.  Readers are requested to bring errors to the 
attention of the Clerk of the Appellate Courts, 303 K Street, 
Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878.



		THE SUPREME COURT OF THE STATE OF ALASKA
	


		ALASKA STATE EMPLOYEES		)
	ASSOCIATION/AFSCME LOCAL		)	Supreme Court No. S-8756
	52, AFL-CIO,				)
							)
   				Appellant,		)	Superior Court No.
							)	3AN-95-9083 CI
		v.					)
							)
		STATE OF ALASKA and ALASKA	)	O P I N I O N
		PUBLIC EMPLOYEES ASSOCIATION,	)
							)
							)
   				Appellees.		)	[No. 5193 - October 15, 1999]
		______________________________)
			


Appeal from the Superior Court of the State of 
Alaska, Third Judicial District, Anchorage,
	Rene J. Gonzalez, Judge.


Appearances: Don Clocksin, Don Clocksin Law 
Offices, Olympia, Washington, for Appellant. 
 James A. Gasper, Jermain, Dunnagan & Owens, 
P.C., Anchorage, for Appellee Alaska Public 
Employees Association.  David T. Jones, 
Assistant Attorney General, Anchorage, Bruce 
M. Botelho, Attorney General, Juneau, for 
Appellee State of Alaska.


Before:	Matthews, Chief Justice, Eastaugh, 
Bryner, and Carpeneti, Justices. [Fabe, 
Justice, not participating.]


PER CURIAM




For the reasons expressed in the appended decision of the 
superior court,1  the judgment of the superior court affirming the 
decision of the Alaska Labor Relations Agency is AFFIRMED.

	IN THE SUPERIOR COURT FOR THE STATE OF ALASKA

	THIRD JUDICIAL DISTRICT AT ANCHORAGE


	 ALASKA STATE EMPLOYEES ASSOCIATION/)
	AFSCME LOCAL 52, AFL-CIO,		)
							)
				Appellant,		)
							)
	vs.						)
							)	Case No. 3AN-95-9083 CI
	STATE OF ALASKA,				)
							)
			Appellee.			)
	 ___________________________________)
			

	DECISION ON APPEAL

I.	INTRODUCTION

In 1995 the Alaska Labor Relations Agency (ALRA) 
reclassified three state positions as supervisory, pursuant to a 
new regulation that amended the definition of the term "supervisory 
employee." As a result, the three positions were transferred out 
of the union that represents non-supervisory state employees, the 
Alaska State Employees Association (ASEA), to the Alaska Public 
Employees Association (APEA), which represents supervisors.  ASEA 
appeals the ALRA decision, and challenges the regulation on which 
it was based.  Because this court finds that the ALRA had the 
explicit statutory authority to adopt a regulation that established 
collective bargaining units for state employees, and the adoption 
of 8 AAC 97.990(a)(5) was within the agency's regulatory authority, 
the ALRA decision is affirmed.

II.	FACTS
On April 14, 1995, the Alaska Labor Relations Agency 
adopted 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;
(C) grievance adjudication, including 
responding to a first level grievance under a 
collective bargaining agreement[.]

The 1995 amendment added the language that a supervisor 
is one who has authority to act or to effectively recommend action 
"in any one of the following supervisory functions"; previously the 
regulation said only that a supervisor is one who has authority to 
act or to recommend action "relating to"some twelve listed 
supervisory functions.
The ALRA, in its decision below, explained that 
[t]he current regulation is an attempt at 
providing a clear test to make [bargaining] 
unit determinations more predictable and 
enable the parties to resolve more unit 
clarification issues themselves. . . .  The 
regulation is intended to increase the 
parties' ability to predict the outcome to 
allow the parties to have a straightforward 
method to initially determine unit placement 
as changes in supervisory duties occur.  The 
community of interest that State supervisors 
share and the potential conflict of interest 
with non-supervisory employees justify a 
separate unit for supervisors under AS 
23.40.090.

On June 30, 1995, the State filed unit clarification 
petitions with the ALRA regarding Kellie Litzen, Eric Johnson, and 
Nathan Johnson, asking the agency to determine whether those 
employees' positions belonged in the supervisory or the non-
supervisory bargaining unit.  The ALRA, applying 8 AAC 
97.990(a)(5), decided that all three employees belonged in the 
supervisory unit.
As a result of the ALRA's decision, the positions held by 
Kellie Litzen, Eric Johnson, and Nathan Johnson were transferred 
from ASEA to APEA.  ASEA objected to this change.  ASEA appealed to 
the Superior Court, and the case was remanded to permit ASEA to 
present its case to the ALRA; on remand the ALRA upheld its 
decision, and ASEA now appeals to the Superior Court.
The gist of ASEA's arguments on appeal are: 1) 8 AAC 
97.990(a)(5) is invalid; 2) the ALRA erred by considering personal 
assertions as evidence of an employee's authority, instead of 
looking to written policy, personnel rules, or job specifications; 
3) the agency erred by ignoring the fact that the three employees 
rarely, if ever, actually exercised supervisory authority; 4) the 
agency erred by improperly considering employee functions that were 
not described by the regulation; 5) the agency failed to apply or 
improperly applied the "community of interest"test; 6) the removal 
of bargaining unit members while a contract is in effect violates 
the contract bar doctrine; 7) the agency's findings were against 
the weight of the evidence; and 8) the agency applied the wrong 
definition of the term "supervisory employee."

III.	DISCUSSION
A.	Validity of the Regulation
1.	Standard of review.
Courts reviewing administrative regulations apply a 
three-step approach: first, they determine whether the agency has 
a statutory grant of authority to make regulations; next, they 
determine whether the regulation is "consistent with and reasonably 
necessary to carry out the purpose of the statutory provisions 
conferring rulemaking authority on the agency"; and lastly, they 
determine whether the regulation is "reasonable and not 
arbitrary."1  The party challenging a regulation has the burden of 
demonstrating that it is invalid.2
The validity of an administrative regulation is a 
question of statutory interpretation for which the reviewing court 
substitutes its independent judgment for that of the agency.3
2.	ALRA has a statutory grant of authority to make 
regulations.


Alaska Statute 23.40.170 provides that "[t]he labor 
relations agency may adopt regulations under AS 44.62 
(Administrative Procedure Act) to carry out the provisions of AS 
23.40.070 - 23.40.260." One of the statutes that the labor 
relations agency may adopt regulations under is AS 23.40.090, which 
requires that the ALRA shall decide on appropriate bargaining units 
for state employees.  That statute reads:
The labor relations agency shall decide 
in each case, in order to assure to employees 
the fullest freedom in exercising the rights 
guaranteed by AS 23.40.070 - 23.40.260, the 
unit appropriate for the purposes of 
collective bargaining, based on such factors 
as community of interest, wages, hours, and 
other working conditions of the employees 
involved, the history of collective 
bargaining, and the desires of the employees.

Alaska Statute 23.40.170 and AS 23.40.090, when read together, give 
ALRA an explicit grant of authority to make regulations that 
establish collective bargaining units for state employees.
ASEA does not argue that the ALRA lacked authority to 
enact regulations, nor do they claim that the ALRA failed to comply 
with the Administrative Procedure Act when they enacted 8 AAC 
97.990(a)(5).  Instead, they assert that 8 AAC 97.990(a)(5) is 
invalid, because it exceeds the ALRA's grant of regulatory 
authority.  This court does not agree.  Since there already are 
separate bargaining units for supervisory and non-supervisory state 
employees, it is well within ALRA's grant of authority to enact a 
regulation that clarifies the boundaries of these units.
3.	The regulation is consistent with ALRA's rulemaking 
authority.


ASEA argues that 8 AAC 97.990(a)(5) is invalid because it 
is inconsistent with AS 23.40.090.  Alaska Statute 23.40.090 
requires that the ALRA shall decide the appropriate bargaining unit 
in each case based on several specified factors, one of which is a 
"community of interest." In essence, ASEA argues that the bright 
line rule created by 8 AAC 97.990(a)(5) ignores the "community of 
interest"test required by AS 23.40.090.  ASEA argues that 
employees who have theoretical supervisory power will be treated as 
supervisors, even though they share a community of interest with 
the rank and file because they actually spend most of their time on 
non-supervisory tasks.
This court finds no conflict between the two provisions. 
 Nothing in AS 23.40.090 prohibits the agency from clarifying 
through regulation what constitutes a community of interest for 
grouping certain employees together.  The ALRA made clear in its 
discussion that part of the reason for enacting this regulation was 
because "[t]he community of interest that State supervisors share 
and the potential conflict of interest with nonsupervisory 
employees justify a separate unit for supervisors . . . ." By 
enacting 8 AAC 97.990(a)(5), the ALRA clearly considered the 
"community of interest"factor, and created a rule that persons who 
have authority to employ, discipline, or adjudicate grievances 
share a sufficient community of interest to be included in the 
supervisory bargaining unit.

ASEA argues that AS 23.40.090 requires the ALRA to decide 
on a case-by-case basis whether each employee shares a sufficient 
community of interest with other supervisors in order to be in the 
supervisory bargaining unit, and that failure to do so violates the 
statute.  However, there is nothing in the statute that requires 
the agency to go through this weighing process with each employee. 
 This court finds that 8 AAC 97.990(a)(5) is consistent with AS 
23.40.090.
4.	The regulation is reasonably necessary.
If a challenged regulation is consistent with a statutory 
purpose, the Supreme Court generally does not require a separate 
showing that it is reasonably necessary to carry out the purposes 
of the statute.4  In reviewing regulations, courts do not 
substitute their judgment for that of the agency with respect to 
the efficacy of the regulation, nor do they review the wisdom of a 
particular regulation.5  A searching inquiry in this area would 
mire the court in questions of public policy and advisability of 
possible alternatives, and would be beyond the court's authority 
and expertise.6
ASEA argues that 8 AAC 97.990(a)(5) is not reasonably 
necessary to carry out the ALRA's grant of authority.  This 
argument lacks merit.  As mentioned above, AS 23.40.090 requires 
the agency to establish appropriate bargaining units.  Under 8 AAC 
97.090(a)(1), a bargaining unit is not appropriate if it combines 
supervisory personnel with non-supervisory personnel.  This rule is 
not disputed here.

Since supervisory and non-supervisory employees must be 
in separate bargaining units, it is incumbent on the ALRA to 
establish guidelines for distinguishing these categories.  The 
regulation fills that need, and gives union officials and state 
executives clear guidance to determine which bargaining unit an 
employee should belong to.  The alternatives to regulation would be 
to decide who is a supervisor on an ad hoc basis, or to leave the 
matter unresolved.  Neither of these methods would be very 
efficient, nor would they assist union officials and state 
executives in making future decisions.  This court finds that 8 AAC 
97.990(a)(5) is reasonably necessary to carry out the ALRA's grant 
of authority embodied in AS 23.40.090.
5.	The regulation is reasonable and not arbitrary.
"Where an agency interprets its own regulation . . . a 
deferential standard of review properly recognizes that the agency 
is best able to discern its intent in promulgating the regulation 
at issue."7
The ALRA has clearly articulated the rationale for 
promulgating a regulatory definition of the term "supervisory 
employee": they intended to prevent conflicts of interest, by 
placing supervisors in a separate bargaining unit from non-
supervisory employees; and they intended to create a bright-line 
rule to help state and union officials determine which collective 
bargaining unit an employee should belong to.

ASEA argues that 8 AAC 97.990(a)(5) will cause employees 
 who have theoretical supervisory power to be treated as 
supervisors even though they actually spend most of their time on 
non-supervisory tasks.  While that may be true, the ALRA found that 
the mere possession of authority, rather than the exercise of 
authority, is sufficient to create supervisory status.  ASEA's 
criticism is really a question of policy.  Whether it is 
appropriate to consider employees to be supervisors, even if their 
supervisory power is not exercised every day, is a matter of 
administrative expertise.
Accordingly, this court will defer to the ALRA determina-
tion that mere possession of authority is sufficient.  This court 
finds that 8 AAC 97.990(a)(5) is valid.  Since the regulation is 
valid, there is no merit to ASEA's argument than the ALRA should 
apply other definitions of "supervisory employee"than it has used 
in the past; the new regulation clearly supersedes those old 
definitions.
B.	Review of the Agency Decision

As noted in Handley above, where an agency interprets its 
own regulations, a deferential standard of review properly 
recognizes that the agency is best able to discern its own intent 
in promulgating the regulation at issue.8  The ALRA's determination 
of an appropriate bargaining unit pursuant to AS 23.40.090 of PERA 
is a question involving agency expertise;9 accordingly the 
reviewing court defers to the agency's determination as long as it 
is supported by the facts and has a reasonable basis in law.10
1.	Employees are competent to testify about their own 
authority.

In the decision below, the ALRA considered evidence from 
various sources to determine whether the positions held by Kellie 
Litzen, Eric Johnson, and Nathan Johnson were supervisory or non-
supervisory.  Among other things, the agency reviewed position 
description questionnaires that had been filled out by each of the 
employees, and heard testimony from each employee about their 
responsibilities and authority in the workplace.  In reaching the 
conclusion that they had supervisory authority, Litzen and the two 
Johnsons did not consult any policy manual, nor did they refer to 
any written documents that explicitly outlined their authority; 
their statements were based on opinion rather than fact.  It 
appears that the agency relied heavily on these statements when it 
concluded that Litzen and the two Johnsons were supervisors.

ASEA argues that supervisory authority can only be 
established through documentation showing that such authority has 
been formally delegated to the employee through official channels, 
in accordance with the State Policy and Procedure Manual.  The 
ALRA, on the other hand, found that such authority could be 
established through testimony or other documentation, including 
employees' own descriptions of their duties.  The ALRA found that 
actual conferral of authority, rather than the official delegation 
of it, was important.
There is no requirement that a state employee must have 
formal documentation of officially delegated responsibility to be 
a supervisor.  In essence, supervisory authority is an issue of 
agency: the supervisor is an agent with authority to hire, fire, 
and manage employer-employee relationships on behalf of the State 
of Alaska.  No express contract between principal and agent is 
required to establish an agency relationship.11  While an agent's 
declarations out of court are inadmissible to prove his agency, his 
direct testimony is admissible to prove his authority and the 
extent thereof.12
The regulation provides that "'supervisory employee' 
means an individual, regardless of job description or title, who 
has authority to act or effectively recommend action"in any of the 
listed supervisory functions.  The fact that the regulation 
explicitly excludes job description and title as indicia of 
supervisory status indicates that actual authority, rather than 
some official designation, is paramount.  Accordingly, the agency's 
decision to rely on individual employees' opinions about their own 
authority was appropriate.

2.	Factual findings are reviewed for substantial 
evidence.

In the present case no evidence was offered to contradict 
the employees' assertions about their authority.  As between the 
parties to the employment relationship (the state and the 
employees) there was substantial agreement that Litzen and the two 
Johnsons had supervisory authority.  This evidence was sufficient 
to support a finding that the employees did indeed have such 
authority.
At most, ASEA was able to show that the employees had 
some doubts as to the exact boundaries of their authority, and that 
they could not cite an official channel through which their 
authority had been delegated.  However, this was insufficient to 
prove that such authority was completely lacking.

According to statute, a court can reverse an agency's 
factual findings if they are not supported by the weight of the 
evidence or substantial evidence in light of the whole record.13 
 However, if there is conflicting evidence, the court will view the 
evidence in favor of the agency's findings, even if the court might 
have taken a different view of the facts.14  When reviewing an 
agency's factual findings, the court need only note whether 
substantial evidence exists, the court does not choose between 
competing inferences nor evaluate the strength of the evidence.15 
 Substantial evidence is such relevant evidence as a reasonable 
mind might accept as adequate to support the agency's conclusion.16
This court finds that the employees' individual testimony 
about their supervisory authority is substantial evidence, and 
sufficient to uphold the ALRA decision.
The fact that this authority was exercised only 
infrequently is not dispositive.  According to the plain language 
of 8 AAC 97.990(a)(5), a supervisor is an individual who "has 
authority to act or to effectively recommend action"in any of the 
listed supervisory functions.  There is nothing in the regulation 
that requires an employee to exercise that authority in order to be 
a supervisor.  Under the regulation, bare possession of authority 
is enough.  Likewise, if ALRA considered other factors, such as 
training and approving leave, that were unrelated to the definition 
in 8 AAC 97.990(a)(5), that consideration has no effect here.
C.	Contract Bar Doctrine

ASEA argues that the decision to transfer employees from 
one bargaining unit to another violates a principle of labor law 
that changes in a bargaining unit should not be made while a 
collective bargaining agreement is in effect.  However, the facts 
do not support this argument because there was no collective 
bargaining agreement in effect at the time that the unit 
clarification petitions were filed.  The collective bargaining 
agreements covering Litzen and the two Johnsons had expired by 
1993, and were being renegotiated when the unit clarification 
petitions were filed on June 30, 1995.
ASEA's argument that the parties entered into an 
agreement that was made effective retroactively to cover the period 
in question lacks support as well.  The State of Alaska and ASEA 
executed a letter of agreement that extended the terms of the 1990-
1992/93 GGU Agreement, with certain modifications, until a 
successor agreement was ratified.  That letter of agreement states 
that it is effective July 1, 1995.  Nothing in the agreement 
indicates that it was made effective retroactively.
The policy enunciated in Edison Sault Electric Co.,17 
invoked by ASEA, is that entertaining a unit clarification petition 
during the midterm of a contract that clearly defines the 
bargaining unit would disrupt the parties' collective-bargaining 
relationship.  That policy has been met here: the petitions were 
filed by the state at a time when the contract was clearly open to 
renegotiation; thus the stability of the collective bargaining 
relationship was not jeopardized.
IV.	CONCLUSION

By enacting 8 AAC 97.990(a)(5), the Alaska Labor 
Relations Agency sought to clarify the boundaries of the collective 
bargaining units for supervisory and non-supervisory state 
employees.  The Agency had statutory authority to enact this 
regulation, and the regulation is appropriate to carry out the 
requirements of the enabling statutes.  The specific question of 
where to draw the line between supervisors and non-supervisors is 
properly treated as a matter of agency expertise.
For the reasons stated above, IT IS HEREBY ORDERED THAT 
 Decision and Order No. 219 of the Alaska Labor Relations Agency is 
AFFIRMED.
DATED at Anchorage, Alaska this 7th day of June, 1998.

RENE J. GONZALEZ
SUPERIOR COURT JUDGE
 	The Decision on Appeal has been edited in accordance with 
our technical standards.

Footnotes:

1	State, Dep't of Revenue v. Cosio, 858 P.2d 621, 624 
(Alaska 1993) (quoting Kelly v. Zamarello, 486 P.2d 906, 911 
(Alaska 1971)).
2	See Kelso v. Rybachek, 912 P.2d 536, 540 (Alaska 1996).
3	See Anchorage Sch. Dist. v. Hale, 857 P.2d 1186, 1188 n.3 
(Alaska 1993).
4	See Cosio, 858 P.2d at 624 n.1.
5	See Kelso, 912 P.2d at 540.
6	See Cosio, 858 P.2d at 624 n.1.
7	Handley v. State, Dep't of Revenue, 838 P.2d 1231, 1233 
(Alaska 1992) (quoting Rose v. State, Commercial Fisheries Entry 
Comm'n, 647 P.2d 154, 161 (Alaska 1982)).
8	See id.
9	See State v. Alaska State Employees Ass'n/AFSCME Local 
52, 923 P.2d 18, 27 (Alaska 1996).
10	See id. at 24.
11	See Cote v. A.J. Bayless Markets, Inc., 626 P.2d 602, 608 
(Ariz. App. 1981).
12	See Nygard v. Dickinson, 97 F.2d 53, 57 (9th Cir. 1938).
13	See AS 44.62.570(c).
14	See Estate of Lewis v. State, Commercial Fisheries Entry 
Comm'n, 892 P.2d 175, 182 (Alaska 1995).
15	See Peninsula Correctional Health Care v. State, Dep't of 
Corrections, 924 P.2d 425, 426 (Alaska 1996).
16	See id. 
17	313 N.L.R.B. 753 (1994). 

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