*1 ALASKA PUBLIC EMPLOYEES

ASSOCIATION, Appellant,

v. Alaska, DEPARTMENT OF

STATE

ADMINISTRATION, OF DIVISION RELATIONS, Appellee.

LABOR

PUBLIC EMPLOYEES LOCAL

AFL-CIO, Appellant, Alaska, DEPARTMENT OF

STATE

ADMINISTRATION, DIVISION OF

LABOR RELATIONS Alaska Pub- Employees Association, Appellee.

lic S-2642, Nos. S-2659. K. Royce, William Jermain and Robert A. Court Alaska. Jermain, Dunnagan Owens, P.C., An- & chorage, for appellant APEA. Dougherty, Anchorage,

Kevin appel- lant Local 71. Bennett, Coie,

W.D. Anchorage, Perkins appellees. MATTHEWS, C.J., Before BURKE, RABINOWITZ, COMPTON MOORE, JJ. OPINION BURKE, Justice. appeals

These consolidated address the unilaterally change employ- state’s governing ment terms Class II and Class before the hold a strike vote. The court ruled that the state’s wage employment conditions of II Class Class III did not violate the Pub- (PERA), lic Relations Act 23.40.260, or article section 23.40.070.— 18 of the Alaska Constitution. We affirm. II Employees Alaska Public Associa- (APEA) and Public organizations. certified labor APEA represents I, II, and III *2 I, II, changes in the and conditions lateral terms represents Local 71 Class ees. employment 1987.4 effective October employees. III and stipulated state their APEA and the PERA, are into employees divided Under at an on negotiations were October II, I em- classes, and III. Class three 16, 1987. their may never strike because ployees1 pro- public’s necessary for the are services sought declaratory in- The and unions 23.40.200(b). Class II tection. AS imposition uni from the junctive relief AS limited to strike. ees2 have a The changes. contract lateral negotia- 23.40.200(c). impasse in After an re temporarily entered an order court must tions, employees II submit Class straining unilaterally in the state from fails, II If Class mediation. Id. creasing the work week from 37.5 to upon majority vote employees can strike away Monday taking from hours and employees The can employees. Id. injunctive relief holiday denied all other long pub- to strike as as the only continue The later requested by the unions. state health, safety or endan- welfare lic’s and agreed wages reinstate the former seek public employer The can gered. litigation this employment while terms en- enjoin strike. If the strike is pending.5 was im- parties are still at an joined and the 11, 1988, February Superior Court On “shall submit to arbitra- passe, parties Judge ruled on the declar- Brian C. Shorten employees, all other Class III tion.” Id. brought and atory judgment by the unions after an employees, can also strike change and held that the state terms long as a as employment of II and conditions of Class for a employees secret ballot vote employees upon III Class 23.40.200(d). strike. AS employees or not the whether parties to a APEA the state were and The court also held a strike vote.6 agreement in effect collective employees deprived were not ruled that the 1987.3 Local April 1984 and June between just compensation by property without and also had a collective bar the state imposition of terms. unilateral April gaining agreement in effect from appealed rulings. The unions these January 1987. 1984 until and the unions were not able state Ill agree- contract after the agree on a new argue that and Local 71 parties hon- APEA Although the expired. ments im prohibits the state from negoti- 23.40.200 agreements during AS original ored the unilateral contract before ations, posing noti- on state October 11, 1987, employees II conduct noti- and Class APEA, August on Class fied and that it implement uni- vote. The state contends strike fied that it would Local stipulation Into employed "police and 5. APEA and the entered as 1. Class I are prison provided con- employees, jail, other that the former terms and protection fire hospital employment effect would remain in institution ditions of correctional 23.40.200(b). (a) employees.” AS Alaska was rendered until a decision Court, appealed, Superior or if “public as II Court; (c) 2. (b) legislation passed; was sanitation, removal, public utility, snow agreement. parties reached an institution school and other educational 23.40.200(c). ployees.” AS employees, ruled that court 6. As Class implementation terms of contract originally into a the state entered 3. APEA and proce- place until the arbitration could not take expired bargaining agreement which 23.40.200(b) had dures contained 31, 1986, extended but which was on December mutually agreed to had exhausted or consent until mutual Therefore, stayed forego the court arbitration. hours, implementation of the state’s contract sought employment The state ruling at accrual, employees. is not provi- holiday as and overtime leave appeal. sions. impose provisions when the when the of the NLRA are sim negotiations. reach an ilar to state statutes.8 See Alaska Com Teachers, munity Colleges’Fed’n process Alaska, University governed by PERA.7 One of (Alaska 1983); Northwest Arctic Re primary purposes pro- of the act is to gional Educ. Attendance Area v. Alaska guidelines public employment vide rela- *3 Employees, 71, Pub. Serv. attempts tions. AS 23.40.070. PERA 1292, (Alaska 1979); 1295 n. 5 Alaska Pub. balance the for uninterrupted state’s need Employees Ass’n v. Municipality An of employees’ services and the need for effec- chorage, 552, (Alaska 555 1976). 553 bargaining However, tive tools. PERA expressly permit does not or prohibit the directly The NLRA does not address the unilaterally changing state from contract question of employer whether an can uni- terms. implement laterally contract terms after an impasse in negotiations. However, We look first to the certain National Labor Rela (NLRA), tions Act 29 have been U.S.C. 159-68 established in deci- §§ (1982), guidance. addressing sions question We have followed the whether uni- interpreting federal decisions implementation the NLRA lateral of contract terms is part: 7. AS 23.40.200 in may the enjoined strike. A strike be not un- begun less it can be shown that it has (a) section, purposes public For of this health, safety threaten the or welfare of the ployees perform services in public.... impasse If an or deadlock still following one of the three classes: injunction, exists after the issuance of an the (1) may given those services which be not parties shall submit to arbitration to be car- time; up period for even the shortest of ried out under AS 09.43.030. (2) may those services interrupted be (d)The (a)(3) class in of this section includes period for a limited but not for an indefinite public employees all other who are not time; in- period of and (a)(1) (a)(2) cluded in the classes in or of this stoppages those services in which work may engage section. in this class may periods be sustained for extended with- in a strike if a in a public. out serious effects on the bargaining unit vote secret ballot (b) (a)(1) The class in of this section is com- to do so. posed police protection employees, of fire jail, prison and other correctional institution NLRA, impasse the temporary Under "a is hospital employees. Employ- deadlock or hiatus in 'which in engage ees in this class not in strikes. broken, eventually through almost all cases is Upon showing by public employer or the application either a of or mind the agency labor relations that in this Serv., economic force.’" Bonanno Linen Inc. v. engaging engage class are or about in a NLRB, 404, 412, 720, 725, 454 U.S. 102 S.Ct. 70 strike, injunction, order, restraining or oth- (1982) (citation omitted). L.Ed.2d 664 appropriate er order which be shall be Bonanno, the United States ac- Court granted by judicial the court in the cepted during the NLRB’s view that NLRA im- occurring district in which strike is the isor passe, “bargaining temporarily replaced by impasse about to occur. anIf or deadlock is Bonanno, economic warfare.” at 412 U.S. bargaining reached in collective between the 8,102 n. S.Ct. at 725 n. 70 L.Ed.2d at 664 n. 8. public employer class, in this Similarly, good we hold that once a faith im- and mediation solving been has utilized re- without reached, passe parties may has been the use deadlock, parties shall submit legal they whatever tools have available to them to arbitration to carried out under AS to obtain their desired result. Because our defi- 09.43.030. impasse closely nition of more resembles the (c) (a)(2) The class in of this section is com- definition under the NLRA than the removal, posed utility, public snow sanita- Railway Federal Labor Act or California tion and school and other educational Act, Employment rely we on the employees. Employees institution in this Railway the Federal Labor Act or mediation, may engage class ain strike after the California Relations Act. subject (d) voting requirement to the of this section, for a Additionally, limited time. The limit is deter- we do not address whether uni- health, safety mined interests of the working lateral in conditions should be public. public employer welfare of the during period barred that the state seeks to agency may apply or the superior enjoin labor relations to the during period Class II strikes or judicial any resulting court in the district which arbitration because this issue is occurring enjoining strike is for an order not before this court. practice policy change even if the under section has an unfair 158(d)9 presented to of the NLRA. first the union on the table, bargaining imposition its may not be employer implements An that NLRB, permitted. Saunders House v. of employment (3d Cir.1983) (“A F.2d concession con without party significant one dis- sulting duty the union to bar violates finding pute precludes a even if gain collectively. ’l First Nat Maintenance gap a wide remains between NLRB, Corp. v. 452 U.S. S.Ct. there is because under circumstances 2573, 2578, (1981); 69 L.Ed.2d reason to believe that further Katz, 736, 742-43, 82 369 U.S.. NLRB might movement.”). produce additional 1107, 1111, 8 L.Ed.2d S.Ct. However, whether the have reached occurs, When an after break is not at issue this negotiations, the em down stipulated the parties case because implement free unilaterally *4 they good impasse. had reached a faith changes employment, provided of the terms union the were offered to the bar Applying these to the instant gaining process. cases, imple- may we believe that the state ment unilateral contract when ne- However, purpose- an cannot employer For gotiations impasse. reach an Class II in to fully negotiate in bad faith order employees, an is reached the when impose a cause an and then unilat- good parties have reached a faith change working in conditions. eral NLRB process ex- and the mediation has F.2d Equip. Corp., v. Sec. 736 Southwest (9th Cir.1984) (“The For an im- hausted. 1337 well-estab- presumption employer passe an is reached are lished is that vio- when 8(a)(5) duty bargain good to in deadlocked.10 lates his § unilaterally if the he terms agreement, of a collective even after that IV expired. agreement has [A 71 the APEA and Local assert that par- not until the will be allowed] deprived property of with employees were negotiate bargain agreement ties new or a just the state de compensation out when question good impasse.”). in faith to they longer hours for manded that work parties negotiated the to whether Const, I, 18.11 art. pay. less Alaska § must determined on a in I, case-by-case to a claim under article NLRB v. Yama order state basis. Wood- (9th Cir.1978), employees must have been Inc., 944 section the craft, 580 F.2d H., Drivers, deprived property of interest. We have a (quoting Dallas Gen. W. & have no NLRB, already 845 ruled that the 355 F.2d v. cases, paid according plan the (D.C.Cir.1966)). Thus, right to AS in certain to be 158(d) 158(d) substantially requires similar to AS Section 23.40.250(1). § U.S.C. 9.29 hours, respect wages, to "with employment.” terms and conditions of other that, argue may 10. unions even if bargaining is defined as follows: Collective implement ment, employ- of the terms and conditions (d) bargain collectively per- is the [T]o ... contrary may impose pay plan to it not obligation of of the em- formance the mutual argument that set forth in 39.27.011. employ- representative and the of terms, By does without merit. its AS 39.27.011 reasonable times and confer ees to meet at bargain- apply of a collective not "members hours, respect wages, faith with authority ing under the unit established employment, or conditions other terms and Therefore, Employment Relations Act." Public agreement, any ques- negotiation an or imple- may unilaterally upon impasse, the state thereunder, arising and the execution tion out pay plan that set ment a different from any incorporating agree- a written the statute. by party, requested either ment reached if Const, I, "[p]ri- party Alaska obligation compel art. § does not either damaged making require agree proposal property vate shall not be taken or just compensation." use without of a concession.... 39.27.011; legal entitlement, they absent a exist side side.... one Doubtless deprived property by were factor salary influences the other....”3 reduction. PERA, pertains as it to class II ees,

Although compromises embodies a scheme an individual be entitled parties’ right to use just compensation economic taken, force when his labor is exchange certain pro- Superior Court, DeLisio v. Alaska PERA, visions. Under class II employees (Alaska 1987), P.2d employ 439-43 granted a qualified to strike. legal right ees no work a week However, permitted strikes are not until totalling thirty-seven and one-half hours. procedures after mediation have been ex- bargaining agreement Once a collective has Furthermore, hausted. the state can seek expired, existing continuation terms injunction an to force the union to submit expectancy. is a mere Cf. 23.40.200(c). Thus, to arbitration. AS un- Auth., Strok Alaska State Hous. NLRA, like the PERA provides for manda- (Alaska 1969)(tenant’s expec tory dispute resolution devices. The differ- tation of renewal of lease was not a ence in schemes comes into Therefore, compensable interest). the em play when are deadlocked. ployees deprived were not property A governed extension of their work union hours. respond forcefully employer’s imposi- changes imposed The unilateral contract at impasse.4 On by the deprive state did not hand, the other if the permitted state were of property protected by interest article *5 impose under PERA to unilateral section 18. during compulsory a mediation or arbitra- AFFIRMED. period, tion the union would be restrained responding. from statute RABINOWITZ, Justice, concurring. under PERA are during peri- unable agree holdings I with the various in this ods to resort to “economic warfare.” opinion. However, disagree with the In my policy holding view the basis for court’s exclusive reliance the NLRA for changes may that imposed unilateral not be purposes determining when during statutory periods mediation are as may unilaterally change the terms of class First, preclud- follows: since II employee under PERA.1 contracts striking during ed statute from media- part designed the NLRA is so that periods, it would be unfair to allow an upon impasse, can employer, from employee shielded econom- pursue break off re- their force, impose ic spective through interests “economic war- Second, working if conditions. an particular, fare.” In union respond permitted impose er were it what deems to an unfair unilateral mediation, it would have change in working by striking.2 bargain less incentive to over the issues statutory scheme subject change. to the This latter conclu- which requirement both the sion appellate was reached a California negotiations, availability “and the of eco- applying court in sector labor act pressure nomic devices to each to make the provisions mediation with similar terms, other party agree incline to on one’s In considering PERA’s.5 em- Union, AFL-CIO, provision 477, 493-95, 1. Int'l "No Alaska’s labor statutes man- 361 U.S. 419, 429-30, dates that ... the NLRA be as S.Ct. [an] 4 L.Ed.2d interpretive ... ] [where statutes aid[ have] purposes policies....” United Id. at different 3. 80 S.Ct. at 4 L.Ed.2d at 464. Food and Commercial Workers v. D A Union & Inc., Supermarkets, (Alaska 4. 1984). Valley Moreno School Dist. Public Unified Bd., permitted even before Cal.App.3d Agents’ NLRB v. impasse. 1983). Insurance reached Cal.Rptr. (Cal.App. 65 & n. 4 changes during mandato- ployer unilateral court periods, the

ry “no-strike” mediation serve

explained allowance would that their efforts, mediation as the

to undermine partic- would incentive to “lose[] process.”6 in the

ipate unique problems

In order resolve the law, by analogy to federal

to PERA “impasse” does

the court holds that

occur at time become Rather, holds

deadlocked. “impasse” only statu- occurs after the

that dead-

tory period mediation which follows (mediation begin See

lock. AS 23.40.190 deadlock). Though I negotiation

after oc-

agree with the conclusion deadlock, only not at after

curs period follows

deadlock, I result am of the view that this more from the set logically

flows provisions from the

forth above than

NLRA. *6 Jr., BARBER,

Lloyd Appellant, L.

MUNICIPALITY OF

ANCHORAGE, Appellee.

No. S-2252. Court Alaska. 30, 1989. Moreno, Cal.Rptr. at 65 & n. 4. Public California Educational non-binding upon as PERA and the Califor- Act sector laws such generally impasse, during act Moreno involve which strikes are forbidden. nia discussed in 3548-3548.8; Diego process to be "substitut- Gov't Code San some §§ Cal. Justice, Court, Un- Superior for direct action.” B. Teachers' Ass'n v. 24 Cal.3d ed ions, economic Cal.Rptr. (pro Accord- Workers and the Law against ingly, can serve to mediation “as decisions under laws hibition strikes scheme, resolving though guidance questions part provide to be sumed" act). presented expressly type here. stated