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Kodiak v. Dept. of Labor (6/4/93), 853 P 2d 1111
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Notice: This 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
KODIAK ISLAND BOROUGH, )
) Supreme Court File No. S-4891
Appellant, ) Superior Court File No.
) 3AN-90-4512 Civil
v. )
)
STATE OF ALASKA, DEPARTMENT )
OF LABOR, LABOR RELATIONS ) O P I N I O N
AGENCY; and the INTERNATIONAL )
BROTHERHOOD OF ELECTRICAL )
WORKERS, LOCAL 1547, )
)
Appellees. ) [No. 3965 - June 4, 1993]
)
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Anchorage,
Karen L. Hunt, Judge.
Appearances: Paul H. Cragan, Hughes,
Thorsness, Gantz, Powell & Brundin,
Fairbanks, for Appellant. Toby N.
Steinberger, Assistant Attorney General,
Anchorage, and Charles E. Cole, Attorney
General, Juneau, for State of Alaska,
Department of Labor, Labor Relations Agency
and William F. Morse, Associate General
Counsel, IBEW LOCAL UNION 1547, for
Brotherhood of Electrical Workers, Local
1547, Appellees.
Before: Moore, Chief Justice,
Rabinowitz, Burke, Matthews and Compton,
Justices.
COMPTON, Justice.
BURKE, Justice, concurring.
MATTHEWS, Justice, concurring.
This case arises out of the Department of Labor, Labor
Relations Agency's (DOL) ruling that the Kodiak Island
Borough's (Borough) 1980 resolution opting out of the
Public Employment Relations Act (PERA) AS 23.40.070-
.260 was invalid. On appeal to the superior court,
Judge Karen Hunt affirmed the DOL ruling. The Borough
appeals. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
The material facts are not disputed. In June 1972 the
State of Alaska enacted PERA. PERA confers upon public
employees the right to organize and to bargain
collectively with their employers. However, Section 4
of PERA also permits the legislative body of any
political subdivision of the state to reject PERA,
preventing its application to the public employees of
that subdivision. Section 4 reads:
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.
Ch. 113, 4, SLA 1972. PERA became effective on September 5,
1972.
In 1977 the Borough enacted personnel rules and
regulations governing relations with its employees.
These rules do not require the Borough to recognize an
employees' union nor do the rules expressly reject
PERA. In 1979 Kodiak Island Borough Employees'
Association (KIBEA) submitted a petition to DOL
requesting that KIBEA be recognized as the bargaining
representative for the Borough's general government
employees. KIBEA later withdrew its petition for
certification in favor of a petition submitted by the
Alaska Public Employees Association (APEA).
After becoming aware of this organizing activity, the
Borough enacted Resolution No. 79-5-R, rejecting the
application of PERA. DOL concluded that the Borough
had not validly opted out of PERA. It sought to
conduct a representation election under PERA. The
Borough refused to allow the election to proceed. As a
result DOL filed a lawsuit against the Borough in
superior court. The superior court granted
DOL's motion for summary judgment, holding that the
Borough had not validly opted out of PERA. DOL then
held the certification election. APEA did not secure
the requisite number of votes to be certified by DOL as
the bargaining representative for the Borough
employees.
On January 22, 1980, twelve days after DOL announced
the results of the election, the Borough again
attempted to reject PERA by adopting Resolution No. 80-
5-R. The 1980 resolution is identical to the 1979
resolution:
Resolution No. 80-5-R, exempting Kodiak
Island Borough from the Alaska Public
Employment Act, Whereas, the assembly
believes that the public interest is best
served by administration of borough employee
relations at the local level, and Whereas,
the State Public Employee Relations Act
applies to municipalities unless the
governing body rejects application of its
provisions; Now, therefore, the Kodiak Island
Borough Assembly resolves: Pursuant to
Section 4, Chapter 113 SLA 1972, the Kodiak
Island Borough rejects application of Section
2, Chapter 113, [SLA] 1972, codified as
AS 23.40.070 et. seq., and commonly known as
the Alaska Public Employment Relations Act.
In 1989 Borough employees again attempted to organize.
The International Brotherhood of Electrical Workers,
Local Union 1547 (IBEW), filed a petition with DOL to
be recognized as the exclusive bargaining agent for the
Borough employees. The Borough objected to the
petition, claiming that it had "opted out"of PERA by
its 1980 resolution. IBEW asserted that the 1980 opt
out resolution was not valid and that DOL had proper
jurisdiction. DOL held a hearing on IBEW's
petition for certification and the Borough's
objections. DOL ruled that the Borough did not validly
opt out of PERA in 1980. The Borough appealed this
ruling to the superior court pursuant to AS
22.10.020(d) and Appellate Rule 602(a). The superior
court affirmed DOL's decision. It held the 1980
resolution was untimely, since the Borough enacted the
resolution after it was aware of organizational
activities of its employees.
II. STANDARD OF REVIEW
The superior court was sitting as an intermediate
appellate court. Accordingly, its decision is not
entitled to deference. Tesoro Alaska Petroleum Co. v.
Kenai Pipe Line Co., 746 P.2d 896, 903 (Alaska 1987).
DOL held a formal adjudicatory hearing before a neutral
hearing officer. Both parties were represented by
counsel, examined and cross-examined witnesses and
introduced evidence. The hearing officer rendered
formal findings of fact and conclusions of law, which
were adopted by DOL as its decision. As to questions
of law which do not involve agency expertise we apply
the substitution of judgment standard of review. Union
Oil Co. of California v. State, 804 P.2d 62, 64 (Alaska
1990). The primary task in this case is to construe
two seemingly inconsistent sections of the same
statutory scheme. The interpretation of this statute
is a question of law to which we will apply our
independent judgment.
To the extent that facts are necessary to the
determination of the legal question, we will adopt
DOL's findings of fact if they are supported by
substantial evidence. Commercial Fisheries Entry
Comm'n v. Baxter, 806 P.2d 1373, 1374 (Alaska 1991).
III. DISCUSSION
KODIAK ISLAND BOROUGH'S RESOLUTION
EXEMPTING THE BOROUGH FROM THE PUBLIC
EMPLOYMENT RELATIONS ACT IS NOT VALID
The question presented by this case involves the
interplay between the right of public employees to
organize for the purpose of collective bargaining under
PERA,1 and the right of a political subdivision to
exempt itself pursuant to section 4 of PERA. We
previously examined these two provisions together in
State v. City of Petersburg, 538 P.2d 263 (Alaska
1975). In Petersburg, the city's electrical workers
signed cards authorizing IBEW to act as their
collective bargaining representative. The city council
then held a special meeting to exempt the city from the
provisions of PERA. Id. at 264. At the time of this
meeting the members of the city council were aware of
employees' activities concerning the formation of a
collective bargaining unit. Id.
In Petersburg we looked for the point beyond which the
right of the city to reject PERA became subordinated to
the rights of the employees to organize. We concluded
that "the analysis must turn on both the substantiality
of the organizational activities undertaken by the
employees and the extent of the City's awareness of
those activities." Id. at 267. The city's rejection
of PERA after becoming aware of the organizational
activities constituted "a gross and impermissible
interference with the employees' freedom to choose
which collective bargaining association should
represent them. . . . [t]he City's prerogative to
reject the Act is not to be used as a de facto veto
against particular unions . . . ." Id. We noted that
the city had requested that the employees form their
own union rather than join IBEW. Id. We concluded
such maneuvering was an attempt to interfere with the
employees' rights under PERA. Id.
In this case the Borough contends that DOL and the
superior court erred by interpreting Petersburg too
broadly. The Borough notes that section 4 expressly
allows political subdivisions of the state to reject
PERA. It argues that the Petersburg limitation on the
employer's right to exempt itself should only apply to
situations in which employee PERA rights are being
interfered with by favoring one union over another.
But, if the employer rejects PERA totally, refusing to
deal with any union, section 4 applies.
The Borough thus argues that Petersburg should be read
narrowly, prohibiting local government only from
favoring one union over another. The Borough claims it
engaged in no such favoritism. Rather, the Borough
made the decision to avoid collective bargaining in
order to manage its employment relations in a way that
was beneficial and appropriate to the overall needs,
abilities and resources of the community. Since the
Borough did not interfere with any specific organizing
efforts, it concludes that its election to reject PERA
should be upheld.
DOL and IBEW argue that the Petersburg analysis should
invalidate any rejection of PERA after employees have
exercised their PERA rights. In 1979 Borough employees
prevailed in a lawsuit which permitted them to exercise
their PERA rights and to decide if a majority of the
employees wanted to be represented by APEA. DOL and
IBEW argue the Borough's attempt to reject PERA is
invalid because it occurred after the employees
exercised their PERA rights.
In City & Borough of Sitka v. International Brotherhood
of Electrical Workers, Local Union 1547, 653 P.2d 332
(Alaska 1982), we held the opt out from PERA valid even
though there had been prior employee organizing
efforts. However, we distinguished Petersburg because
the employees in Sitka had attempted to organize prior
to the passage of PERA. From the time PERA was enacted
until Sitka exempted itself there had been no
organizing activities. The employees could not have
organized in reliance on their PERA rights because PERA
had not yet become the law. City & Borough of Sitka,
653 P.2d at 335.
By contrast, in this case Borough employees have
already relied upon their PERA rights. The Borough's
attempt in 1979 to stop the employees from organizing
was an attempt, as in Petersburg, to deny employees
their statutory right to organize. The fact that the
resolution was passed just twelve days after the
employee vote indicates the Borough was still
attempting to thwart employee efforts to organize under
PERA.2
In Petersburg we limited a local government's ability
to exempt itself from PERA once the local government
became aware of substantial steps taken by employees to
exercise their PERA rights. Although this holding
limits the freedom of political subdivisions to opt out
of PERA, we concluded that this result was consistent
with the legislature's intent. 538 P.2d at 268.
"[A]pplicability of PERA is the rule, exemption the
exception." Id. We reaffirm that political
subdivisions may not reject PERA after becoming aware
of substantial organizational activity by employees.3
IV. CONCLUSION
The Borough's rejection of PERA after it became aware
of substantial organizational activity is invalid. The
decision of the superior court affirming DOL's
determination that the Borough's 1980 resolution was
ineffective in rejecting PERA is AFFIRMED.
BURKE, Justice, concurring.
I concur because I am bound by the decision of the
court in State v. City of Petersburg, 538 P.2d 263 (Alaska 1975).
MATTHEWS, Justice, concurring.
I agree that the 1980 opt-out resolution of the Kodiak
Island Borough is invalid. I reach this conclusion on the basis
of the fact that the resolution was untimely, coming as it did
more than seven years after the effective date of PERA. This
court has not established a specific time limit for a public
employer to exempt itself from PERA. However, we have made it
clear that "a public employer which chooses to opt out of PERA
must do so promptly, rather than at its leisure . . . ."
Anchorage Mun. Employees Ass'n v. Municipality of Anchorage, 618
P.2d 575, 579 (Alaska 1980) (opt-out resolution passed one month
after municipal entity was created held timely). Although we
have never set a definite outside limit after which a
municipality's attempted opt-out would be considered untimely, it
seems clear to me that the 1980 resolution of the Borough is
necessarily beyond any reasonable limit.
I do not think that today's opinion is on sound ground
in concluding that awareness of substantial organizational
activity by employees necessarily precludes an employer from
rejecting PERA. The point of State v. City of Petersburg, 538
P.2d 263 (Alaska 1975), is that an employer should not be able to
change the rules by which organizational contests are conducted
in the midst of a contest. In the present case the contest was
over. The organizational election had been held and the union
had lost. Despite the fact that the Borough was aware of these
events, recognizing the opt-out as valid would not be unfair
because the opt-out did not interfere with ongoing organizational
activities.
_______________________________
1. Alaska Statute 23.40.070 states in relevant part:
Declaration of policy. . . . 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. We reject the Borough's contention that organizing
activity had ceased after the election because there
were no organizing efforts in the twelve day period
preceding the Borough's rejection of PERA. We note
that PERA requires employees to wait for one full year
following a valid election before they can hold another
election. AS 23.40.100. As the organizational hiatus
during the twelve day period was consistent with PERA,
the lack of organizational activity did not terminate
the employees' PERA rights.
3. In Anchorage Mun. Employees Association v. Municipality
of Anchorage, 618 P.2d 575, 579 (Alaska 1980), we wrote
"a public employer which chooses to opt out of PERA
must do so promptly, rather than at its leisure . . .
." Because we conclude that Kodiak Island Borough's
rejection of PERA after it became aware of substantial
organizational activity was invalid, we do not reach
the question of whether PERA can be rejected seven
years after it was enacted.
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