DEPARTMENT OF LABOR
ALASKA LABOR RELATIONS AGENCY
P.O. BOX 107026
ANCHORAGE, ALASKA 99510-7026
Fax (907) 264-2591
INTERNATIONAL UNION OF ) OPERATING ENGINEERS, LOCAL 302, ) Petitioner, ) ) vs. ) ) CITY OF KOTZEBUE, ) ) Respondent. ) ________________________________) Case No. 91-023-RC & 91-035-RC Consol.
DECISION AND ORDER NO. 140
This case was heard on December 17, 1991, before the Alaska Labor Relations Agency, with Chairman Darrell Smith and Board Member B. Gil Johnson, participating, and Hearing Examiner Jan Hart DeYoung, presiding. The record closed on December 17, 1991.
Robert M. Goldberg, Goldberg and Associates, for Petitioner International Union of Operating Engineers, Local 302; and Jerald M. Reichlin, City Attorney, for respondent City of Kotzebue.
The Public Employment Relations Act applies unless a municipality affirmatively acts to reject it by ordinance or resolution. A municipality must act promptly and not at its leisure. Adopting an ordinance rejecting PERA approximately three and one half years after the enactment of PERA is not acting promptly and is ineffective to reject PERA.
This is another case raising the issue of a municipality's rejection of the Public Employment Relations Act under section 4 of the legislation adopting PERA. Section 4, ch. 113, SLA 1972. In this case the Operating Engineers challenge the City of Kotzebue's ordinance rejecting PERA because the City did not also adopt a substitute collective bargaining scheme or, in the alternative, because the City adopted it approximately three years after the enactment of PERA. The City of Kotzebue defends its ordinance by arguing that, so long as it did not adopt its ordinance to frustrate employees' actual exercise of rights under PERA, it may reject PERA at any time.
The parties stipulated to the following statement of facts, which the Agency adopts.
Stipulated Statement of Facts
1. On March 4, 1976, the City Council of the City of Kotzebue enacted Ordinance 76-73 rejecting the provisions of the Public Employment Relations Act (PERA). The Ordinance was passed pursuant to the authority of Section 4, Chapter 113, SLA 1972. (Exhibit 1).
2. The Ordinance preamble notes that:
[T]here are no pending negotiations with employees of the City nor is the Council aware of any intended formation of a bargaining unit within the City at the time of introduction of this Ordinance.
3. In December of 1990, the City was contacted by the International Union of Operating Engineers, Local 302 (Local 302), which stated its interest in representing City employees in the Public Works Department.
4. On December 13, 1990, the City informed Local 302 that it had long ago rejected PERA and enacted a scheme of ordinances dealing with wages, hours and other terms and conditions of employment. The City's ordinances do not contain a provision for collective bargaining. (Exhibit 2).
5. The City offered to meet and confer with Local 302 regarding any recommendations or proposals it might have. The offer to meet and confer said that it was not recognition of any particular representative status nor was it an offer to bargain. Id.
6. Pursuant to the City's reply a meeting with Scott Vaughn (Vaughn) of Local 302 and Caleb Pungowiyi (Pungowiyi) was held in early February, 1991, at which there was discussion of union representation of City employees and employee concerns over recent City cost cutting measures including reduction of hours and layoffs.
7. On February 22, 1991, the Alaska Labor Relations Agency (Agency) informed the City that it had received a petition from Local 302 seeking certification as the representative of the employees of the City's Public Works Department. The letter stated:
Under 2 AAC 10.060 this Agency must verify that the Petitioner has shown that 30 percent of the permanent and probationary employees in this union want to be represented. To do so I require a certified list of the names and job classes for all employees currently employed in this unit.
If, after comparing the interest cards with this list, it is determined that the Petitioner has obtained the required threshold of interest, I will first notify the parties and then post notices of the petition in workplaces of the proposed unit. Please note that this notice will state that interested parties may object to the petition with the Agency within 15 calendar days from the date of posting the notice.
8. The City replied by letter of March 4, 1991, that it had rejected PERA in 1976. With regard to the authority for the Agency's verification of employees under 2 AAC 10.060, the City wrote:
The statutory authority for this regulation is AS 23.40.170, a part of PERA. Since the City has validly opted out of PERA it is the opinion of the City of Kotzebue that the regulation has no application to the City.
The City also noted that the statute enumerating the powers, duties and functions of the Alaska Labor Relations Agency limited its authority to PERA. (Exhibit 4).
9. By letter of March 18, 1991, the Agency informed the City that:
[It would] consider your correspondence as a timely objection to the Representation Petition. However, the City must file the requested employee list.
. . . .
If the Agency determines that there is not the required showing of interest then the Agency will dismiss the petition. If this threshold is satisfied, the Agency will post the Notice of Election. The employer then has 15 days from the date of posting to file any objections to the petition of election.
. . . .
This Agency takes the position that it has jurisdiction to review the effectiveness of a municipality's rejection, by ordinance or resolution of the Public Employment Relations Act per Section 5, Chapter 113, SLA 1972.
. . . .
If I do not receive a current employee list . . . , I will determine the showing of interest without it. I will consider any failure to provide a current employee list to be a waiver of any objection to that determination.
The Agency cited Kodiak Island Borough v. State of Alaska, Dep't of Labor, Labor Relations Agency and the International Bhd. of Elec. Workers, Local 1547, Case No. 3AN-90-4512. (Exhibit 5).
10. On May 1, 1991, the Alaska Labor Relations Agency wrote and informed the City that since it had declined to provide the Agency with an employee roster,
[I]t has waived any right to challenge whether the petitioner has established the threshold requirement of a 30 percent showing of interest under AS 23.40.100.
11. On May 8, 1991, the Agency's letter, along with a Notice of Petition for Certification of Public Employee Representative (Notice) and a Local Petition for Certification of Public Employee Representative (Petition) were served on Pungowiyi, the City Manager, by an Alaska State Trooper. The Trooper sought to post the Notice and Petition in the City Hall and the Public Works Department.
12. Pungowiyi presented the Trooper with a copy of the lawsuit, City of Kotzebue v. Alaska Labor Relations Agency, Case No. 2KB-91 35 Civil (filed May 2, 1991), and refused to allow posting of the petition notice.1
13. On May 10, 1991, the Agency wrote the City and stated:
Because the City of Kotzebue has refused to allow posting, the Agency is departing from its usual procedures and is scheduling a hearing on the sole issue of the Agency's jurisdiction over the City under Section 4, Chapter 113, SLA 130 1972.
A prehearing conference was held on Tuesday, May 28, 1991. A second prehearing conference was held on Tuesday, September 3, 1991.
This Agency previously reviewed a challenge to a municipality's rejection of PERA under section 4, ch. 113, SLA 1972 in International Bhd. of Elec. Workers v. City of Homer, Decision & Order No. 138, at 6 - 7 (Dec. 31, 1991), appeal docketed, No. 3AN-92-1095 CI (super. ct. filed Jan. 29, 1992). After reviewing administrative and judicial decisions, the Agency identified three principles to guide a review of an opt out ordinance or resolution: timeliness of the rejection; existence and knowledge of organizational activity; and absence of a substitute collective bargaining scheme. Id., at 7.
Ultimately the Agency rejected the third principle, absence of a substitute for PERA, as a basis for rejecting an opt out ordinance. Id., at 8 - 17. The Agency failed to find in PERA an obligation on municipalities to adopt a substitute for collective bargaining upon rejecting PERA under section 4. Likewise, in this case PERA does not mandate the City to adopt a collective bargaining substitute to validate or perfect its rejection of PERA.
The Operating Engineers, however, raise an additional basis for invalidating the ordinance rejecting PERA; they claim a municipality must act promptly in rejecting PERA. This Agency previously has identified the timeliness of a resolution or ordinance rejecting PERA as bearing on its validity. Id., at 7.
The City of Kotzebue adopted its ordinance rejecting PERA on March 4, 1976 -- three years and nine months after PERA was signed into law on June 7, 1972, Alaska v. City of Petersburg, 538 P.2d 263, 89 L.R.R.M.(BNA) 3095 (Alaska 1975), and three years and six months after PERA's effective date of September 5, 1972. Sitka v. International Bhd. of Elec. Workers, Local 1547, 653 P.2d 332, 114 L.R.R.M.(BNA) 2858 (Alaska 1982).
The City's delay in adopting the ordinance in this case far exceeds the delay in all of the cases in which the Alaska Supreme Court has considered the validity of a municipality's rejection of PERA under section 4, ch. 113, 1972. For example, the City of Petersburg adopted its ordinance six months after the effective date of PERA. Alaska v. City of Petersburg, 538 P.2d 263, 89 L.R.R.M.(BNA) 3095 (Alaska 1975) (challenge upheld). The City of Anchorage adopted its resolution rejecting PERA on August 8, 1972, one month before PERA's effective date, and the Greater Anchorage Area Borough adopted its resolution rejecting PERA in April of 1973, seven months after the effective date. Approximately one month after the merger of the city and borough in September of 1975, the newly created Municipality of Anchorage passed a resolution rejecting PERA. Anchorage Municipal Employees Ass'n v. Municipality of Anchorage, 618 P.2d 575, 576, 108 L.R.R.M.(BNA) 2255, 2257 (Alaska 1980) (challenge rejected). The City of Fairbanks adopted its resolution one month before the effective date of PERA -- August of 1972. City of Fairbanks v. Fairbanks AFL-CIO Crafts Council, 623 P.2d 321, 108 L.R.R.M.(BNA) 2397 (Alaska 1981) (challenge rejected). Sitka acted eleven months after the effective date. Sitka v. International Bhd. of Elec. Workers, Local 1547, 653 P.2d 332, 333, 114 L.R.R.M.(BNA) 2858, 2859 (Alaska 1982) (challenge rejected). In all of these cases the municipalities acted either within one year of PERA's effective date or within one year of their formation.
The Agency2 has considered challenges to ordinances and resolutions adopted more than one year after PERA's effective date. It found the Kodiak Island Borough's resolution, which was adopted in January of 1980, over seven years after the effective date, ineffective to reject PERA. International Bhd. of Elec. Workers, Local 1547 v. Kodiak Island Borough, DOLLRA Decision and Order 90-5 (May 2, 1990), affirmed, no. 3AN-90-4512 (super. ct. Dec. 9, 1991), appeal docketed, No. S-4891 (supreme ct. filed Dec. 20, 1991). It also declined to recognize a City of Bethel resolution rejecting PERA. Bethel adopted its resolution in 1982, approximately ten years after the adoption of PERA and approximately two and one half years after the Agency had certified a bargaining representative for a unit of employees in that city. Alaska Public Employees Ass'n v. City of Bethel, DOLLRA Decision & Order 90-6, at 13 (Nov. 7, 1990), appeal docketed, no. 4BE 90-219 CIV (super. ct. filed Dec. 4, 1990).
In all of these cases a recurring theme appears -- the need for a municipality to act promptly and not at its leisure in rejecting PERA. Although the court has not provided a specific deadline for municipal action, it does require that the action be reasonably prompt. In Anchorage Municipal Employees, the court states:
Nor does Petersburg set a limited time period of six months after the enactment of PERA during which the exemption must be exercised, thus precluding exemption by newly formed governments such as the Municipality which were not in existence during that period. Petersburg merely holds that a public employer which chooses to opt out of PERA must do so promptly, rather than at its leisure, and that under the facts of that case, six months was adequate time for the City to act. The decision does not deprive a newly formed municipality of the option to reject PERA, so long as it does so promptly after its formation and without interfering with the employees' exercise of their established rights. To hold, as AMEA urges, that the exemption option was only intended to available for a limited period of time after the enactment of PERA would basically rob Section 4 of any continued validity even though it is still printed in the Alaska Statutes. Had the legislature wanted Section 4 to be of temporary duration, we think it would have so indicated.
618 P.2d at 579, 108 L.R.R.M.(BNA) at 2259 (emphasis added, footnote omitted).
In this case PERA was unquestionably the law in the City of Kotzebue for a period of more than three years. We reject the argument of the City that rights under PERA mature only after they are exercised. PERA applies absent an affirmative act to reject it. Petersburg, 538 P.2d at 268, 114 L.R.R.M.(BNA) at 3098 - 3099. We believe that the action to reject PERA must be taken within a reasonable time period. Id. The court in Sitka notes that PERA, signed into law on June 7, 1972, was not effective until September 5, 1972, and states, "This interim period afforded adequate time for municipalities to become informed [of PERA] in most cases." Id. The City of Kotzebue had adequate time to learn of PERA long before March 4, 1976.
Over three years is an unreasonable period of time to delay action. In considering a seven month delay rejecting PERA, the court noted that, "Although seven months may be considered untimely in some circumstances, there is nothing in the present case to indicate that GAAB acted less than conscientiously and diligently in rejecting PERA." Anchorage Municipal Employees, 618 P.2d at 581, 108 L.R.R.M.(BNA) at 2260. The City of Kotzebue did not act diligently or conscientiously by delaying over three years. We therefore conclude that PERA applies.
Conclusions of Law
1. This Agency has jurisdiction under AS 23.40.100 to consider the issue of a challenge to a municipality's attempt to reject PERA under section 4, ch. 113, SLA 1972.
2. Section 4, ch. 113, SLA 1972 provides:
This Act is applicable to organized boroughs and political subdivisions of the state, home rule or otherwise unless the legislative body of the political subdivision, by ordinance or resolution, rejects having its provisions apply.
3. A municipality must act promptly and diligently under section 4, ch. 113, SLA 1972 to exercise its rights under that section.
5. A delay of three and one half years is not prompt action and invalidates the attempt to reject PERA.
6. City of Kotzebue Ordinance 76-73 is ineffective to reject the application of PERA and PERA therefore applies to the City of Kotzebue.
1. The City of Kotzebue's objection is DISMISSED.
2. Fourteen days from the date of service of this decision and order the City of Kotzebue shall file with the Agency a certified list of employees in the unit described by petitioner in its petition.
3. If a sufficient showing of interest appears, the Agency will proceed to direct the posting of the petition under 2 AAC 10.070. If the showing is insufficient because of personnel changes while this proceeding was pending, the petitioner may supplement its showing for a period of 30 days following a finding of insufficiency.
4. If petitioner establishes the required 30 percent showing of interest under AS 23.40.100, the Agency will proceed if appropriate to conduct a secret ballot election.
THE ALASKA LABOR RELATIONS AGENCY
Darrell Smith, Board Chairman
B. Gil Johnson, Board Member
James W. Elliott, Board Member
1On May 8, 1991, the City filed a complaint for declaratory and injunctive relief against the Agency seeking a declaration that the Agency had no jurisdiction over the City and seeking to enjoin Agency proceedings in this action. City of Kotzebue v. Alaska Labor Relations Agency, Case No. 2KB-91 35 Civil (filed May 2, 1991).
2"Agency" is used in this decision to refer to the present Alaska Labor Relations Agency and one of its predecessors, the Department of Labor, Labor Relations Agency (DOLLRA). Before July 1, 1990, the Department of Labor, Labor Relations Agency administered the Public Employment Relations Act for municipalities. On July 1, 1990, the Alaska Labor Relations Agency assumed the administration of PERA for municipalities as well as for the state and school districts. Executive Order 77 (eff. July 1, 1990). DOLLRA issued the decisions and orders in Alaska Public Employees Ass'n v. City of Bethel, DOLLRA Decision & Order 90-6 (Nov. 7, 1990), appeal docketed, no. 4BE 90-219 CIV (super. ct. Dec. 4, 1990), and International Bhd. of Elec. Workers, Local 1547 v. Kodiak Island Borough, DOLLRA Decision & Order 90-5 (May 2, 1990), affirming invalidity of opt out, No. 3AN-90-4512 (super. ct. Dec. 9, 1991), appeal docketed, no. S-4891 (supreme ct. filed Dec. 20, 1991).