City & Borough of Sitka v. International Brotherhood of Electrical Workers, Local Union 1547

RABINOWITZ, Justice,

dissenting.

I disagree with the court’s holding that Sitka Ordinance 73-93 validly exempted Sitka from the requirements of PERA. Therefore, I would affirm the superior court’s ruling that Sitka’s attempted exemption from PERA was ineffective.

In my view, State v. Petersburg, 538 P.2d 263 (Alaska 1975), is controlling. The focus of my disagreement with the court’s treatment of this issue is its conclusion that the organizational activity must occur between the effective date of PERA, September 5, 1972, and the July 10, 1973 passage of the exemption ordinance. The distinction between Petersburg and the instant case is that in the former the union activity took place between the effective date of PERA and the city’s exemption. Here the union activity occurred prior to the effective date of PERA. In my view, this factual distinction is of no legal significance.

The principal concern of Petersburg was that a city might employ its opt-out option as a de facto veto of a particular labor organization. Although a claim that the political subdivision has resorted to its exemption to thwart particular employee organizations is compelling when the city or borough exempts itself immediately after the commencement of organizational activities, as was the case in Petersburg, the timing of those organizational activities should not be dispositive.

It is uncontroverted that Sitka was aware of the long history of past IBEW organizational attempts. More important than the lack of Union activity within the “window period” is the city’s continuing fear of, and disdain for, the IBEW. Sometime after all the electrical employees signed union authorization cards (which was probably in the spring of 1972 and before the city passed its exemption ordinance in July 1973), several city leaders met with the electrical department employees. At this meeting, IBEW representation was discussed. One employee testified: “I remember Mr. Conway (an assembly man) saying that if you do get a union, we will pull back everything, start from there, you won’t have anything. Those aren’t verbatim, but that’s the gist of what he said.” The city’s only objection to IBEW seems to have been that it was a powerful outside organization. The city administrator testified: “I believe it’s the feeling of the assembly and the prior council there that it should be a local problem there, and wages and fringes should be tied to a local economy as to the prevailing wage and what have you. This — this is what I read into it.” Thus, review of the record persuades me that there is ample evidence showing that Sitka opted out of PERA primarily because it objected to the IBEW.