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).
-2- 5193
APPENDIX Page 10 of 15 5193
