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AK State Employees Ass'n. v. State (4/3/92), 831 P 2d 1245
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NOTICE: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers are
requested to bring typographical or other formal errors to
the attention of the Clerk of the Appellate Courts, 303 K
Street, Anchorage, Alaska 99501, in order that corrections may
be made prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
ALASKA PUBLIC EMPLOYEES ASS'N, )
)
Appellant, ) File Nos. S-3582/3622
)
ALASKA STATE EMPLOYEES ASS'N, )
) 3AN 87 9537 CIVIL
Intervenor, )
) O P I N I O N )
v. )
)
STATE OF ALASKA, )
) [No. 3825 - April 3, 1992]
Appellee. )
________________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, John Bosshard III, Judge.
Appearances: James A. Gasper, Jermain, Dunnagan
& Owens, Anchorage, for APEA. Don Clocksin,
Wagstaff, Pope & Clocksin,
Anchorage, for ASEA. Kathleen Strasbaugh, Assistant
Attorney General, Douglas Baily, Attorney General,
Juneau, for State. Kevin Dougherty, Anchorage, for
Amicus Curiae Public Employees Local 71.
Before: Rabinowitz, Chief Justice, Burke, Matthews,
Compton and Moore, Justices.
BURKE, Justice.
COMPTON, Justice, with whom RABINOWITZ, Chief Justice
joins, dissenting.
This case requires that we decide whether the state's
classification plan for state jobs and its assignment of salary
ranges to that plan are mandatory subjects of collective
bargaining under Alaska's Public Employment Relations Act (PERA).
We conclude that these are not mandatory subjects of collective
bargaining. Accordingly, we affirm the decisions of the
administrative agency and the court below.
I
Pursuant to the State Personnel Act, AS 39.25, the
state must establish a "position classification plan" for all
state employees covered by the Act.1 Under such a plan, each
position, or job, is assigned to a class based on duties,
responsibilities, and requirements of training or experience.
The Personnel Act also requires the state to establish a pay plan
for all classified positions.2 Under the pay plan, the job
classes are assigned to salary ranges, and then pay rates are
assigned to the salary ranges.
During the 1980s, the Alaska Public Employees
Association (APEA) was the collective bargaining representative
for two bargaining units of state employees -- the General
Government Unit (GGU) and the Supervisory Unit. Together, these
two units comprised more than 7,500 state employees in
approximately 1,000 different job classifications. Prior to
1987, the APEA and the state had negotiated agreements for both
units that permitted the state to classify jobs and to assign
salary ranges to the classifications.3 The agreements also
provided APEA with an appeal procedure by which the union could
contest the state's job classification decisions and salary range
assignments up through the Department of Personnel to,
ultimately, the Commissioner of Administration. When the APEA
and the state entered into negotiations for new agreements to
replace those that expired on June 30, 1987, APEA proposed to
alter the provisions covering the union's right to contest job
classifications and salary range assignments. In particular,
APEA wanted the new contracts to provide that all job
classification and pay plan disputes would be resolved through a
grievance procedure with binding arbitration as its final step.
The state, as employer, was no stranger to the sort of
provision APEA attempted to bring to the bargaining table in
1987. Indeed, the state previously had negotiated collective
bargaining agreements with two unions -- Public Employees Local
71 (Local 71) and Public Safety Employees Association (PSEA) -
that included provisions essentially identical to the one APEA
proposed. Nonetheless, the state refused to consider APEA's
proposed provision.
In June 1987, APEA filed with the State of Alaska Labor
Relations Agency (the Agency) an unfair labor practice complaint
against the state. The complaint alleged, among other things,
that classification plans and salary range assignments were
mandatory subjects of bargaining under PERA, AS 23.40.070-.260,
and that by refusing to bargain over those subjects the state had
violated the duty to bargain in good faith.
After the filing of the unfair labor practice
complaint, APEA and the state tentatively approved new collective
bargaining agreements. The parties also agreed to dismiss
without prejudice all charges in the unfair labor practice
complaint other than those related to bargaining over job
classification and salary assignment. Accordingly, APEA and the
state fully briefed the remaining issues and, on August 26, 1987,
the Agency issued an Order and Decision in the case. The Agency
concluded that job classifications and salary range assignments
were permissive, but not mandatory, subjects of bargaining under
PERA. This was so, explained the Agency,
because AS 23.40.250(8) [of PERA]
excludes from mandatory collective bargaining subjects,
those "general policies describing the function and
purposes of a public employer." Those roles
include the
constitutional obligation of the employer to maintain a
merit system, as amplified in AS 39.25.010 [of the
Personnel Act], and the public policy duty to
maintain a rational integrated system of
classification.
Consequently, the Agency held that the state had not committed an
unfair labor practice when it refused to bargain over APEA's
proposed contract provision.
APEA appealed the Agency's decision to the superior
court. Alaska State Employees Association (ASEA), as the current
bargaining representative for the GGU, was permitted to
intervene; PSEA was permitted to participate as amicus curiae.
On August 18, 1989, the superior court, Judge John Bosshard III,
issued a Memorandum Opinion and Judgment affirming the Agency
decision in the case. APEA and ASEA have appealed the superior
court decision; Local 71 has entered the case as amicus curiae.
II
We have applied two different standards when reviewing
decisions by administrative agencies.4 "[W]here the questions of
law presented do not involve agency expertise or where the
agency's specialized knowledge and experience would not be
particularly probative as to the meaning of the statute,"we have
applied the independent judgment standard. Tesoro Alaska
Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d 896, 903 (Alaska
1987) (emphasis removed). However, "where the questions at issue
implicate special agency expertise or the determination of
fundamental policies within the scope of the agency's statutory
function,"we have applied the rational basis standard. Id.
Normally, a choice between these two standards of
review carries particular importance as a ruling on the extent to
which the courts properly should defer to an agency's decision in
a particular type of case. In the present case, however, close
analysis of the standard of review question would produce nothing
of practical significance. At the time APEA filed its unfair
labor practice complaint, AS 23.40.250(3) provided that the labor
relations agency responsible for administering PERA with regard
to the state and state employees was the state personnel board.
AS 23.40.250(3), as enacted by ch. 113, 2, SLA 1972.
Subsequently, the governor, by executive order, created a new
labor relations agency whose responsibilities combine "the labor
relations functions of the Department of Administration personnel
board, the Department of Labor, and the railroad labor relations
agency into one state agency, the Alaska labor relations agency,
in the Department of Labor." Executive Order No. 77 (1990)
(amending, inter alia, AS 23.40.250(3)). We decline this
opportunity to rule on the proper deference due either to the
decision of a defunct agency or to the decisions of a new agency
that had no involvement whatsoever with the case before us.
Instead, we note that our holding today would be the same under
either the independent judgment standard or the rational basis
standard of review.
III
The stated purpose of PERA is to give public employees
"the right to share in the decision-making process affecting
wages and working conditions." AS 23.40.070.5 Accordingly, P
ERA specifically requires public employers to "negotiate with and
enter into written agreements with employee organizations on
matters of wages, hours, and other terms and conditions of employment."
AS 23.40.070(2). Such matters are "mandatory
subjects of bargaining." Alaska Community Colleges' Fed'n of
Teachers, Local 2404 v. University of Alaska, 669 P.2d 1299, 1
305 (Alaska 1983) (Federation of Teachers). Another section of PERA
provides that "`terms and conditions of employment' means the
hours of employment, the compensation and fringe benefits, and
the employer's personnel policies affecting the working
conditions of the employees; but does not mean the general
policies describing the function and purposes of a public
employer." AS 23.40.250(8).
As previously explained, the coordination of
classification and pay plans for state employees consists of a
three-step process: (1) each job is assigned to a class; (2) each
job class is assigned to a pay range; and (3) salaries are
assigned to each pay range. The question before us is whether
steps one and two of the process properly fall within the
"general policies"clause of AS 23.40.250(8).6 If they do, then
the state did not commit an unfair labor practice by refusing to
negotiate with APEA on those subjects. See AS 23.40.110(5).
A
In this case, the Agency and the superior court both
concluded that the merit principle was the most important
employer policy implicated in the classification and pay plans.
We agree.
The Alaska Constitution requires the legislature to
"establish a system under which the merit principle will govern
the employment of persons by the State." Alaska Const. art. XII,
6. Generally defined, the merit principle requires the
recruitment, selection, and advancement of public employees
"under conditions of political neutrality, equal opportunity, and
competition on the basis of merit and competence." R. Vaughn,
Principles of Civil Service Law 9.3[6], at 9-27 (1976) (quoting
Stanley, What Are Unions Doing to the Merit Principle?, 31 Pub.
Personnel Rev. 109 (1970)). In actual practice, however, "the
merit principle is more complex and ambiguous than the above
definition reveals." Id. Our legislature adopted the Personnel
Act for the express purpose of implementing the constitutionally
mandated merit principle in state employment. AS 39.25.010(a).
Clearly recognizing the complexity of its task, our legislature
also provided a detailed definition for the merit principle.7
Thus, by statute, "[t]he merit principle of employment includes
. . . regular integrated salary programs based on the nature of
the work performed." AS 39.25.010(b). The elements of the merit
principle's "salary programs,"of course, are the classification
plans and the salary plans adopted pursuant to AS 39.25.150.
With this understanding of the merit principle in mind,
we turn now to the specific matters that the unions would have us
categorize as mandatory subjects of bargaining.
B
The easier issue on appeal relates to the state's
statutory duty under AS 39.50.150(1) to establish a job
classification plan. The unions do not contend that job
classification concerns wages or hours. The unions do contend,
however, that the assignment of jobs to classes necessarily falls
within the scope of the state's "personnel policies affecting the
working conditions of the employees." AS 23.40.250(8). In
response, the state argues that job classification falls within
the scope of "the general policies describing the function and
purposes of a public employer." Id. We agree with the state.
A salary program must begin with a carefully designed
framework of job descriptions and classifications -- the
"position classification plan"mandated by AS 39.25.150(1).8 A
job classification plan, then, is an integral part of the very
foundation of the merit principle in state employment. Any
collective bargaining provision that would affect directly the
state's job classification plan also would affect directly the
preeminent general policy governing state employment
administration. We are convinced that AS 23.40.250(8) excludes
that sort of basic policy decision from the mandatory subjects of
bargaining listed in AS 23.40.070(2).9
C
We come then to the more troublesome aspect of this
case. The primary problem emerges from the statutory language in
the Personnel Act that charges the director of personnel with
responsibility for creating personnel rules that "shall provide
for"
(2) the preparation, maintenance,
revision and administration by the director
of personnel of a pay plan for all positions in the
classified and partially exempt
services; the pay plan (A) shall be based
upon the position classification plan; (B) shall
provide for fair and reasonable compensation for
services rendered, and reflect the principle of like
pay for like work; (C) may be amended, approved,
or
disapproved by the legislature in regular or special
session; after the pay plan is in effect, a salary or
wage payment may not be made to a state employee
covered by the plan unless the payment is in accordance
with this chapter and the rules adopted under this
chapter or unless the payment is in
accordance with a valid [collective
bargaining] agreement entered into in
accordance with AS 23.40 [PERA] . . . .
AS 39.25.150(2). The pay plan described in this subdivision of
the statute, of course, encompasses steps two and three of the
general classification and wage establishment process: after job
classification is done, the pay plan assigns salary ranges to the
individual classes and then assigns actual dollar figures to each
salary range. All parties here agree that the assignment of
actual dollar figures to the salary ranges is a matter of "wages"
and thus a mandatory subject of bargaining. See AS 23.40.070(2).
The only question is whether step two also is a mandatory subject
of bargaining under AS 23.40.250(8).
To begin with, we find the final clause of subdivision
(2) ambiguous. The clause alludes to the controlling effect a
collective bargaining agreement might have on the actual salary
or wage payment a covered state employee may receive. Certainly
that language reinforces the conviction that the legislature
intended the state to bargain collectively with public employee
unions over the actual determination of salary amounts certain
classified employees will receive. However, the statute does not
answer the question whether the legislature also intended to give
public employee unions the right to demand bargaining over salary
or wage range assignments to job classes.
Other provisions of the Personnel Act bring the problem
closer to focus. For example, as we have noted, the
legislature's own definition of the merit principle includes
"regular integrated salary programs." AS 39.25.010(b)(2)
(emphasis added). A salary program is the schedule produced by
integrating the applicable job classification plan with the
applicable pay plan. See AS 39.25.150(1) & (2). Thus, arguably,
the first aspect of the pay plan -- the assignment of salary
ranges to job classes -- actually embodies, in practical form,
the state's preeminent policy of establishing a system of
personnel administration according to the merit principle.
Accordingly, we agree with the state that collective bargaining
over assignment of salary ranges to job classes necessarily
impinges upon the merit principle, which generally is not a
mandatory subject of bargaining.
On the other hand, we also agree with the unions that
the assignment of salary ranges to job classes undeniably
impinges upon the issue of "compensation . . . and the employer's
personnel policies affecting the working conditions of
employees,"AS 23.40.250(8), which usually are mandatory subjects
of bargaining. Thus, on the issue of salary range assignments,
employee and governmental interests substantially overlap. It is
precisely this overlapping of interests that we recognized when
we recently called the problem of categorizing the issue "a close
and difficult question." State v. Public Safety Employees Ass'n,
798 P.2d 1281, 1287 (Alaska 1990) (Public Safety Employees
Ass'n).10
Of course, in some respects, the overlap of employer
and employee interests on this issue actually may benefit public
employment administration. As we explained in PSEA:
State employees are as familiar with
their qualifications and positions as their
administrators are. They may be able to make
a valuable contribution to the process of assigning
positions to salary ranges. In this respect, giving
public employees a voice in matters like salary range
classification seems consistent with the purposes of
the [Personnel] Act.
Id. at 1286. Consequently, the assignment of salary ranges
clearly should be a permissive subject of bargaining. The state
definitely should give its employees a voice in salary range
assignments, by bargaining over the assignments, when the state
considers such interaction beneficial to the larger mission of
public employment. Nevertheless, the final question is whether
unionized employees should have the power to constrain the state
to bargain collectively over matters related to the merit
principle. We believe that a satisfactory answer to this
question emerges when we interpret the controlling statutes in
light of our own prior cases on the proper scope of collective
bargaining under PERA.
In Kenai Peninsula Borough School Dist. v. Kenai
Peninsula Educ. Ass'n, 572 P.2d 416 (Alaska 1977) (Kenai I), we
enunciated a general balancing test for determining whether an
issue of public education was negotiable in collective bargaining
between a teachers' union and the local government under AS
14.20.550-.610 (mediation and negotiation in public education
employment). In general, we wrote, "a matter is more susceptible
to bargaining the more it deals with the economic interests of
employees and the less it concerns professional goals and
methods." Id. at 422. Subsequently, of course, we held that
PERA establishes the distinction between mandatory and permissive
subjects of bargaining and makes refusal to bargain over
mandatory subjects an unfair labor practice. Federation of
Teachers, 669 P.2d at 1305. We now adapt the Kenai I balancing
test for "negotiability"to the Federation of Teachers division
between mandatory and permissive subjects of bargaining in cases,
such as this one, where the government employer's constitutional,
statutory, or public policy prerogatives significantly overlap
the public employees' collective bargaining prerogatives. We
conclude that a matter is more susceptible to categorization as a
mandatory subject of bargaining the more it deals with the
economic interests of employees and the less it concerns the
employer's general policies.
When we apply this test in the present case, we
conclude that salary range assignment cannot be a mandatory
subject of bargaining under the state's present system of
implementing its "regular, integrated salary programs."
Admittedly, state employees have strong economic interests in the
assignment of salary ranges to classifications. However, the
countervailing policy concern at work here is, by specific
provision of the Personnel Act, the weightiest one in the state
employer's trust. See Alaska Const. art. XII, 6; AS 39.25.010.
No similarly specific prerogative exists on the unions' side of
the balance. Indeed, in PERA the legislature expressly
reinforces the importance of the merit principle and rather
pointedly refrains from stating that implementation of the merit
principle may ever be mandatorily contingent upon the approval of
its employees or of outside arbitrators. See AS 23.40.070.11
This contrast between the state's strong, specific, express
mandate to act and the employees' more diffuse, general, limited
entitlement to bargain is important in our balance of the
competing interests here.
Also important to our decision here, however, is the
fact that the collective bargaining representatives of state
employees may demand that the state bargain over the actual pay
scales assigned to the state-designed salary ranges. Thus, the
employees do have some mandatory influence, at the most concrete
level, in the final shape of their pay plans. If this were not
so, then the employees' interest in the assignment of salary
ranges would increase markedly and might outweigh the state's
interest in the merit principle, insofar as the principle inheres
in assignment of salary ranges to job classes. Accord
AS 23.40.070 (purpose of PERA is to grant public employees "the
right to share in the decision-making process affecting wages and
working conditions" through collective bargaining); AS
39.25.150(2) (Personnel Act approves determination of wage
payments according to collective bargaining agreements entered
into under PERA). On its face, however, the mandatory right to
bargain over the final step by which the state integrates its job
classification and pay plans currently provides unionized
employees adequate exercise of the mandatory bargaining
prerogative granted them in AS 23.40.070(2). Accordingly, we
hold that the assignment of salary ranges to job classes is not a
mandatory subject of collective bargaining between the state and
its employees' collective bargaining representatives.
IV
APEA also argued before the Agency, and now argues on
appeal, that even if job classification and salary range
assignment are not mandatory subjects of collective bargaining,
the state still must submit disputes over those issues to binding
arbitration. We disagree. Binding arbitration is not absolutely
available when the matter in dispute is not a mandatory subject
of bargaining. See Kenai Peninsula Educ. Ass'n v. Kenai
Peninsula Borough School Dist., 628 P.2d 568, 569 & n.1 (Alaska
1981).
APEA's agreements with the State contained no provision
for mandatory arbitration of classification plan and pay range
assignment disputes, and no basis exists for the implication of
such a remedy. See supra note 3 and accompanying text
(describing APEA's bargained-for appeals procedure for the
state's job classification and salary range assignment
decisions). Under the facts of this case, the state's actions
related to job classification and salary range assignments are
not subject to binding arbitration.
The superior court decision affirming the State Labor
Relations Agency Order and Decision No. 110 is AFFIRMED.
COMPTON, Justice, with whom RABINOWITZ, Chief Justice
joins, dissenting in part.
The court concludes that the assignment of position
classifications to salary ranges is not a mandatory subject of
collective bargaining. I do not agree with this conclusion and
therefore dissent. In all other respects I agree with the court.
I agree that the constitutionally mandated merit
system,12 and the State Personnel Act (Personnel Act)13 which
implements it, take precedence over the Public Employment
Relations Act (PERA)14 to the extent that there is a conflict
between them. However, the court has not articulated any
conflict between the merit system and Personnel Act on the one
hand and PERA on the other, nor is any apparent.
An examination of the steps to be taken under
AS 39.25.150(1) and (2) is necessary for an understanding of the
case. The first step is the development of the position (job)
classification plan. This entails "(A) a grouping together of
all positions into classes on the basis of duties and
responsibilities; [and assigning] (B) an appropriate title, a
description of the duties and responsibilities, training and
experience qualifications, and other necessary specifications for
each class of positions." AS 39.25.150(1).15
For example, within Department A certain employees, who
have had similar education or on-the-job training, have jobs with
roughly equivalent duties and responsibilities. They have in
common other objectively determinable characteristics considered
necessary to perform this job. The employer determines that this
job will be titled "Operator I." Thus, in order to assume the
duties and responsibilities of an Operator I, an employee must
have the education or training and other previously identified
characteristics which the employer now specifies in a job
description. Applying this procedure to all employees within all
departments will result in a number of different job
classifications.
The second step is development of the pay plan. It is
based on the job classification plan and "shall provide for fair
and reasonable compensation for services rendered, and reflect
the principle of like pay for like work." AS 39.25.150(2).
Development of the pay plan involves several
considerations. At some point a wage for each job must be
identified, i.e., what wage should an Operator I be paid?
Presumably the employer will refer to available wage data
regarding wages paid to other public employees, and perhaps
private employees, for comparable employment. By this process
"fair and reasonable compensation for services rendered" should
be established. Wage comparability also must be applied in order
to effectuate the principle of "like pay for like work."
The employer and union determine the available ranges
into which each job classification ultimately will be placed.16
If the job classification of Operator I in Department A and
Examiner III in Department B are roughly equivalent in terms of
duties, responsibilities and qualifications, these
classifications should be grouped together for the purpose of
assignment to a range.17 Applying this procedure to all job
classifications will result in the emergence of a number of
different job classification groupings and ranges. A hierarchy
of ranges will be established. If there are ten such groupings,
they may be denominated Ranges I through X. These ranges are
commonly referred to as "salary ranges."
The court holds that development of the job
classification plan is a matter that is not a mandatory subject
of collective bargaining. I agree. However, one of the two
integral components of the pay plan is the placement of the
employee's job classification in a particular salary range by the
personnel director. This determines how much a specific employee
will receive as wages. The court holds that this also is not a
mandatory subject of collective bargaining. I disagree.
This court said in Kenai Peninsula Borough School District v.
Kenai Peninsula Education Association, 572 P.2d 416, 422 (Alaska
1977) (Kenai I), that "a matter is more susceptible to bargaining
the more it deals with economic interests of employees and the
less it concerns professional goals and methods." Except for
assignment of dollar figures to salary ranges, nothing deals with
the economic interests of employees more than assignment of job
classifications to those salary ranges.
The state argues that assignment of job classifications
to salary ranges is a "general polic[y] describing the function
and purpose[] of a public employer,"and therefore does not fall
within AS 23.40.250(8)'s definition of "terms and conditions of
employment." The essence of the state's argument is that denying
the state complete control over job classification decisions will
undermine the merit system18 since otherwise the state will have
to bargain with the union over the placement of approximately
1,000 different job classifications across multiple salary
ranges. Further, according to the state, the stated purpose of
PERA to maintain "merit-system principles among public
employees," AS 23.40.070(3), indicates the clear intent of the
legislature to immunize the state's job classification decisions
from mandatory bargaining obligations.
The court's analysis proceeds along similar lines. The
court notes that the merit system defined in AS 39.25.010(b)(2)
embodies "regular integrated salary programs." Op. at 13. A
salary program "is the schedule produced by integrating the
applicable job classification plan with the applicable pay plan.
See AS 39.25.150(1) & (2)." Id. From this the court declares
that "arguably, the first aspect of the pay plan -- the
assignment of salary ranges to job classes -- actually embodies,
in practical form, the state's preeminent policy of establishing
personnel administration according to the merit principle." Id.
Reasoning from what it has declared to be arguable, the court
then opines that bargaining over assignment of salary ranges to
job classifications "necessarily impinges upon the merit
principle." Id. Thus it concludes that assignment of salary
ranges to job classifications is not subject to collective
bargaining.19
Having already arrived at its ultimate conclusion, the
court then acknowledges that assignment of job classifications to
salary ranges also impinges on the issue of compensation. This
leads the court to remark that "on the issue of salary range
assignments, employee and governmental interests substantially
overlap." Op. at 14. The "overlap of employer and employee
interests on this issue actually may benefit public employment
administration. . . . Consequently, the assignment of salary
ranges clearly should be a permissive subject of bargaining."
Op. at 14-15.
The court's reliance on an overlapping of interests to
exclude from mandatory collective bargaining the assignment of
job classifications to salary ranges is misplaced. The
employer's and employees' interests will always overlap, to a
greater or lesser degree.
It must be noted that assignment of dollar figures to
salary ranges, the other integral component of the pay plan
required by AS 39.25.150(2), does not impinge on the merit
principle. The state does not claim that it does. Instead, the
state acknowledges that assignment of dollar figures to ranges
"is a matter of `wages' and thus a mandatory subject of
bargaining." Op. at 12. The court does not question either the
state's analysis or its conclusion regarding the propriety of
assignment of dollar figures to salary ranges.
The state's differentiation between assignment of job
classifications to salary ranges and assignment of dollar figures
to salary ranges is significant. Neither the text of the
Personnel Act nor its legislative history presumes or implies any
differentiation between these two processes. This underscores
the flaw in the state's argument and the error to which it leads
the court.
Alaska Statute 23.40.070(2) requires that "public
employers . . . negotiate with and enter into written agreements
with employee organizations on matters of wages, hours, and other
terms and conditions of employment." In turn, AS 23.40.250(8)
defines "terms and conditions of employment"to mean "the hours
of employment, the compensation and fringe benefits, and the
employer's personnel policies affecting the working conditions of
the employees; but does not mean the general policies describing
the function and purposes of a public employer." The economic
impact on an employee's wages and compensation by assignment of
an employee's job classification to one salary range rather than
another is both significant and obvious. APEA provides the
following example:
For instance, if the employee
classification "Accounting Technician III"is
assigned to Range 16, a new hire (Step A) is paid
$2,702 per month. If the classification is assigned to
Range 17, the new hire will receive $2,895 per month;
if Range 15 is the salary benchmark, the employee's
monthly wages are $2,518. If an AccountingTechnician
III has a level of responsibility greater than an
Accounting Technician II, then that fact is
reflected in the wages paid.
I am not persuaded by the state's argument that
decisions affecting assignment of job classification to salary
ranges are "general policies" within a public employer's
exclusive control. I conclude that "wages, hours, and other
terms and conditions of employment"under AS 23.40.070(2), and
"terms and conditions of employment" under AS 23.40.250(8),
clearly include assignment of job classifications to salary
ranges, and thus are mandatory subjects of collective bargaining.
Seemingly the court does also, for in accepting the unions'
argument, the court declares that "assignment of salary ranges to
job classes undeniably impinges upon the issue of `compensation
. . . and the employer's policies affecting the working
conditions of employees.'" Op. at 14.
Job classification decisions do not concern
professional goals and methods in the same way as do those
matters, such as determination of class size and evaluation of
administrators, that the court held non-negotiable in Kenai I,
572 P.2d at 424. It is not obvious that assignment of job
classifications to salary ranges falls within "the general
polic[y] describing the function and purpose[] of a public
employer." AS 23.40.250(8).
The unions' position that collective bargaining over
assignment of job classifications to salary ranges does not
undermine the merit system is persuasive, in the absence of any
articulated reasons or evidence to the contrary. I reiterate
what the court has already quoted from State v. Public Safety
Employees Association, 798 P.2d 1281, 1286 (Alaska 1990) quoted
in Op. at 14-15:
State employees are as familiar with
their qualifications and positions as their
administrators are. They may be able to make
a valuable contribution to the process of
assigning positions to salary ranges. In
this respect, giving public employees a voice in
matters like salary range classification
seems consistent with the purposes of the
[Personnel] Act.
Unfortunately, the court then silences the voice of
these same public employees by immediately declaring that
assignment of job classifications to salary ranges should be a
subject of "permissive" collective bargaining. "The state
definitely should give its employees a voice in salary range
assignments, by bargaining over assignments, when the state
considers such interaction beneficial to the larger mission of
public employment." Op. at 15 (emphasis added).
Assignment of dollar figures to salary ranges is a
matter of "wages" and thus a mandatory subject of collective
bargaining. Yet as important as are salary ranges, they are
meaningless until job classifications are assigned to them.
Nonetheless, the court concludes that this step in the
development of the pay plan is not a mandatory subject of
collective bargaining, only a permissive subject of collective
bargaining. In so concluding, the court necessarily determines
that assignment of job classifications to salary ranges is not a
matter of "wages, hours, and other terms and conditions of
employment." Since "[e]mployers are free to make unilateral
changes on matters which fall outside these mandatory subjects
(wages, hours, and other terms and conditions of employment) of
bargaining," Alaska Community Colleges' Federation of Teachers,
Local No. 2404 v. University of Alaska, 669 P.2d 1299, 1305
(Alaska 1983), the state will be free unilaterally to reassign
job classifications to salary ranges. In just what way this type
of unilateral action on the part of the public employer
encourages, develops and maintains an effective career service is
not explained.
On the contrary, if we recognize a state right to
unilaterally reassign job classifications, the real possibility
exists that the merit principle will be impinged. In addition to
"regular integrated salary programs"on which the court focuses,
the merit principle includes "selection and retention of an
employee's position secure from political influences."
AS 39.25.010(b)(5). Where individuals who are in political
disfavor are employed in identifiable job classifications, the
potential exists for abuse of a state right to unilaterally
reassign a job classification to a lower range.
Job classification is the responsibility of the
director of personnel, subject to approval of the commissioner of
administration and personnel board. AS 39.25.150(1). The
personnel board is comprised of three persons, not more than two
of whom may be from the same political party. They are appointed
by the governor and confirmed by the legislature. On the other
hand, the pay plan is the responsibility of the director of
personnel alone. AS 39.25.150(2). The legislature, in regular
or special session, may amend, approve or disapprove of the pay
plan. Id. This difference is significant because of the greater
power vested in one person, the director of personnel, in
preparing, maintaining, revising and administering the pay plan.
At the outset of its opinion, the court acknowledged
that "[t]he stated purpose of PERA is to give public employees
`the right to share in the decision-making process affecting
wages and working conditions.'" Op. at 7. Concluding that
assignment of job classifications to salary ranges is a matter
for only permissive collective bargaining is a repudiation of
sharing in any sense of the word.
I would reverse the decision of the superior court,
which upheld Alaska Labor Relations Agency Order and Decision No.
110, and direct that the case be remanded to the ALRA with
directions that the public employer be ordered to enter into
mandatory collective bargaining with the unions over assignment
of job classifications to salary ranges.
_______________________________
1. AS 39.25.150(1). The director of the state
personnel division of the executive branch of government, the
state personnel board, and the commissioner of administration all
share responsibility for establishing the classification plan.
Id.
2. AS 39.25.150(2). The director of personnel alone
has responsibility for preparing, maintaining, revising, and
administering the pay plan. Id.
3. Article 19 of the General Government Unit
agreement covered job classification; Article 18 of the
Supervisory Unit agreement was an identical provision.
4. We scrutinize the merits of the Agency's decision
directly, without deference to the superior court's intermediate
appellate decision. Tesoro Alaska Petroleum Co. v. Kenai Pipe
Line Co., 746 P.2d 896, 903 (Alaska 1987).
5. Section 23.40.070 -- "Declaration of policy" --
provides in full:
The legislature finds that joint decision-
making is the modern way of administering
government. If public
employees have been granted the right to share
in the decision-making process affecting wages and
working conditions, they have become more responsive
and better able to exchange ideas and
information on
operations with their administrators.
Accordingly, government is made more
effective. The legislature further finds that the
enactment of positive legislation establishing
guidelines for public employment relations is the best
way to harness and direct the energies of public
employees eager to have a
voice in determining their
conditions of work, to provide a rational method
for dealing with disputes and work stoppages, to
strengthen the merit principle where civil
service is in effect, and to
maintain a favorable political and social
environment. The legislature declares that
it is the public policy of the state to promote
harmonious and cooperative relations between government
and its employees and to protect the public by
assuring effective and orderly operations of
government. These policies are to be effectuated by
(1) recognizing the right of public employees
to organize for the purpose of collective
bargaining;
(2) requiring public employers to
negotiate with and enter into written agreements
with employee organizations on matters of wages,
hours, and other terms and conditions of employment;
(3) maintaining merit-system principles among
public employees.
6. All parties in this case agree that step
three --assignment of actual salaries to the pay plan --
is a matter of wages within the meaning of AS
23.40.070(2), and thus a mandatory subject of collective
bargaining.
7. AS 39.25.010 provides in full:
(a) It is the purpose of this chapter to
establish a system of personnel
administration based upon the merit principle
and adapted to the requirements of the state to the
end that persons best qualified to perform the
functions of the state will be employed, and that
an effective career service will be encouraged,
developed and maintained.
(b) The merit principle of employment includes
the following:
(1) recruiting, selecting, and advancing employees
on the basis of their relative ability, knowledge,
and skills, including open consideration of
qualified applicants for initial openings;
(2) regular integrated salary programs based on
the nature of the work performed;
(3) retention of employees with permanent
status on the basis of the adequacy of their
performance, reasonable efforts of
temporary duration for correction in
inadequate performance, and separation for cause;
(4) equal treatment of applicants and employees
with regard only to consideration within the merit
principles of employment; and
(5) selection and retention of an employee's
position secure from political influences.
8. A job, or "position,"classification plan first
requires "a grouping together of all positions on the basis of
duties and responsibilities." AS 39.25.150(1)(A).
9. As the state notes, other jurisdictions generally
agree with our conclusion here. See, e.g., In re State
Employees' Ass'n of New Hampshire, Inc., 422 A.2d 1301, 1303
(N.H. 1980). The unions, by contrast, have not brought a single
authority to our attention in support of their argument that job
classification is a mandatory subject of bargaining.
10. In Public Safety Employees Ass'n we also noted
that "[d]ecisions in other jurisdictions are not very helpful
because many states have more detailed provisions addressing this
question." 798 P.2d at 1286. Indeed, even when other courts
address the question of mandatory public sector bargaining in
general terms, the results are idiosyncratic. Compare Central
Michigan Univ. Faculty Ass'n v. Central Michigan Univ., 273
N.W.2d 21, 26 (Mich. 1978) (even if aspect of employment
relationship may be said to be only minimally a condition of
employment, it is a mandatory subject of bargaining) with
University Educ. Ass'n v. Regents of the Univ. of Minnesota, 353
N.W.2d 534, 539 (Minn. 1984) (if term or condition of employment
and employer's managerial policies "are so inextricably
interwoven' that negotiation of the issue negotiation of the
policy," then the issue is not a mandatory subject of
bargaining). Commentators likewise present sharply diverging
views on the proper scope of public sector collective bargaining.
Compare Summers, Public Employee Bargaining: A Political
Perspective, 83 Yale L.J. 1156, 1192-94 (1974) with Developments
in the Law -- Public Employment, 97 Harv. L. Rev. 1611, 1684-99
(1984).
11. The declaration of policy in PERA expressly includes a
mandate to coordinate four distinct, and in some sense competing,
interests:
The legislature . . . finds that the
enactment of positive legislation
establishing guidelines for public employment
relations is the best way to harness and direct the
energies of public employees eager to have a voice
in determining their conditions of work, to provide
a rational method for dealing with disputes and
work stoppages, to strengthen the merit principle where
civil service is in effect, and to maintain a
favorable political and social environment.
AS 23.40.070 (quoted in full supra note 5). Moreover,
the final subsection of AS 23.40.070 reiterates the
importance of the merit principle in public employment.
Id. at (3). Thus, nowhere does
AS 23.40.070 state or imply that collective
bargaining and employee organizing shall be integral
parts of a merit system of employment. On the
contrary, PERA's declaration of policy always refers to
the merit principle as an important, independent policy
that may limit employee rights if those rights conflict
with the merit principle.
12. Article XII, section 6 of the Alaska Constitution
provides: "The legislature shall establish a system under which
the merit principle will govern the employment of persons by the
State."
13. AS 39.25.010 identifies the purpose of the State
Personnel Act as follows:
It is the purpose of this chapter
to establish a system of personnel
administration based upon the merit principle
and adapted to the requirements of the state to the
end that persons best qualified to perform the
functions of the state will be employed, and that
an effective career service will be encouraged,
developed and maintained.
14. AS 23.40.070-.260.
15. In its rebuttal brief before the Alaska Labor Relations
Agency, the state declared:
The very essence of the State's
function in the execution of these
constitutional and statutory mandates is the
description of the work to be performed, the
determination of the knowledge, skills and abilities
of employees necessary to perform such work and the
allocation of that work for pay purposes.
16. It is not disputed that ranges are freely negotiated in
the collective bargaining process. APEA provides the following
example:
The State and the union negotiate
over the appropriate salary schedule deciding
the "pure"wage for an employee, e.g., Range 16, Step
A salaries are $2,702 per month, $2,895 per month,
or $2,518 per month. Determining a particular
employee's compensation requires matching the wage
within the Range Schedule to the employee's
classification.
Presumably the wage data which are used to
establish "fair and reasonable compensation"and "like
pay for like work"for each job classification will
also be used to establish groupings of job
classifications and salary ranges.
17. In its rebuttal brief before the Alaska Labor Relations
Agency, the state declared: "As described earlier, each
job is analyzed and assigned to a classification
with groups of classifications assigned to a pay
range."
18. Amicus Curiae Public Employees Local 71 points out that
it has negotiated assignment of job classifications to salary
ranges since 1972, with binding arbitration where an impasse
resulted. The state's response is simply that because it
permitted this subject to be negotiated does not mean that the
subject is required to be negotiated. The state's reasoning may
be flawless. However, it points to no incident when negotiation
of this subject, and submission of the subject to binding
arbitration, has "impinged"on the merit system. Neither does the
court.
19. As acknowledged by the court in State v. Public Safety
Employees Association, 798 P.2d 1281, 1286 (Alaska 1990),
decisions in other jurisdictions supporting the Alaska Labor
Relations Agency's conclusion that the assignment of job
classifications to salary ranges is not a mandatory subject of
bargaining are not very helpful. Many states have more detailed
provisions addressing the issue:
For example, based upon a very
specific merit system exception to the
definition of the terms and conditions of
employment, the New Hampshire Supreme Court
has held that most subjects within the
jurisdiction of the Personnel Commission, including
salary classification, are not
negotiable. State Employees' Ass'n v. New Hampshire
Pub. Employee Labor Relations Bd., 397 A.2d 1035 (N.H.
1978). Similarly, a New York court held that
classification of court employees is not a mandatory
subject of bargaining because the legislature
specifically declared that "allocations and
reallocations to salary grades of positions in the
classified service of the state are not terms and
conditions of employment. . . ." Evans v. Newman,
71 A.D.2d 240, 423 N.Y.S.2d 59, 62 (1979).798 P.2d at
1286.
This court agrees with its prior assessment. Op. at 14
n.10.
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