IN THE MATTER OF THE ARBITRATION BETWEEN ______________________________________ ANCHORAGE POLICE DEPARTMENT ) EMPLOYEES ASSOCIATION ) ) OPINION and ) AND ) AWARD MUNICIPALITY OF ANCHORAGE ) ______________________________________ ) Grievance No. 94-4 AAA Case No. 75-L390-00142-97 _______________ Janet L. Gaunt Arbitrator _______________ August 1, 1998 For the Union: For the Employer: Ray R. Brown, Esq. Thomas M. Daniel, Esq. Dillon & Findley, P.C. Katherine C. Tank, Esq. 510 L Street, Suite 603 PERKINS COIE Anchorage, AK 99501 1029 West Third Avenue, Suite 300 Anchorage, AK 99501 Witnesses 1. Charlie, Audino, former President, APDEA 2. Stanley McCartney, former President, APDEA 3. Ken Foster, former President, APDEA 4. John Strutko, former President, APDEA (by phone) 5. Gereth Stillman, APD Patrol Officer and former APDEA Treasurer 6. John Alexander, former MOA Labor Relations Manager 7. John P. O’Brien, Sergeant, Municipality of Anchorage 8. John Marton, former MOA Labor Relations Specialist (by deposition) 9. Ralph Mingo, former APDEA President (by deposition) 10. Will Aitchison, Chief Negotiator, APDEA 11. Neil Koeniger, former Negotiating Team Member, Municipality of Anchorage 12. Brian Porter, former Chief of Police, Municipality of Anchorage 13. Duane Udland, Chief of Police, Municipality of Anchorage 14. George Novaky, former Police Captain, Municipality of Anchorage (by phone) 15. Alex Kraft, former President, APDEA Exhibits Association 1. Language in Article V, Section 2 and Article VII, Section 1 from the 1972-1975 Collective Bargaining Agreements between APDEA and City of Anchorage. 2. 1972 Letter of Agreement regarding Patrol Division 4/10 workweek (with transcription of relevant language) 3. 1974-1975 Collective Bargaining Agreement between APDEA and City of Anchorage. 4. Language in 1975-77 Collective Bargaining Agreement between APDEA and MOA on Article V, Section 2 and Article VII, Section 1. 5. 1982 bargaining proposals and notes. 6. Language in 1980-82 Collective Bargaining Agreement between APDEA and MOA on Article V, Section 2 and Article VII, Section 1. 7. Language in 1985/88 Collective Bargaining Agreement between APDEA and MOA on Article V, Section 2 and Article VII, Section 1. 8. Memorandum of Agreement regarding Tentative Agreements reached on October 7, 1991. 9. APDEA proposal to change Article VII, Section 1 in 1990-1991 negotiations (3/16/90) 10. APDEA’s factfinding brief on Article VII, Section 1 in 1990-1991 negotiations (11/90) 11. [not admitted] 12. Excerpts from Factfinder’s recommendations concerning Article VII, Section 1 (undated). 13. [not admitted] 14. [not admitted] 15. Relevant portions of Anchorage Municipal Code, Chapter 3.70 (Employee Relations). 16. APDEA grievance challenging change from 4/10 to 5/8 work shift (8/1/94) 17. Municipality’s response to APDEA grievance (8/2/94) 18. [not admitted] 19. 1995-1998 Collective Bargaining Agreement between APDEA and MOA Witness/Exhibit Lists 20. Examples of CBA provisions indicating waiver. 21. [not admitted] 22. [not admitted] 23. Proposals from 1980 negotiations. 24. W.D. Bennett Report of Negotiations Between Municipality and APDEA (10/31/89) 25. 1980 Bargaining Notes 26. 1980 draft Letter of Understanding with notes. 27. Excerpts from APDEA and Municipality of Anchorage briefs to Factfinder regarding zipper clause. 28. Municipality of Anchorage 1977-1978 last best offer explanation. 29. Miscellaneous proposals and notes from 1985-1986 negotiations. 30. Municipality of Anchorage and APDEA 1985 bargaining proposals. 31. [not admitted] 32. Chief Brian Porter letter to Fredric Dichter (6/11/86). 33. Jerry Thom letter from John Alexander (6/19/86). 34. [not admitted] 35. Article II Scope of Agreement proposals 36. Municipality of Anchorage 1990 Work Shift Proposal. 37. Charts from APDEA’s Opening Statement 38. Deposition of John Marton. 39. Deposition of Ralph Mingo. 40. Illustrative Exhibit regarding selected bargaining proposals (limited purpose). 41. Grievance documents, Case 86-12. 42. [objection sustained] Municipality 1. 1971 Collective Bargaining Agreement between APDEA and City of Anchorage. 2. 1972-1973 Collective Bargaining Agreement between APDEA and City of Anchorage. 3. 1974-1975 Collective Bargaining Agreement between APDEA and City of Anchorage. 4. 1975-1980 Collective Bargaining Agreement between APDEA and City of Anchorage. 5. 1980-1982 Collective Bargaining Agreement between APDEA and Municipality of Anchorage. 6. 1982-1985 Collective Bargaining Agreement between APDEA and Municipality of Anchorage. 7. 1985-1989 Collective Bargaining Agreement between APDEA and Municipality of Anchorage with letter of agreements 8. 1990-1994 Collective Bargaining Agreement between APDEA and Municipality of Anchorage. 9. 1996-1998 Collective Bargaining Agreement between APDEA and Municipality of Anchorage. 10. Minutes of Police Department Meeting (6/13/75). 11. Minutes of Police Department Meeting (7/10/75). 12. Minutes of Police Department Meeting (7/18/75). 13. Minutes of APDEA Negotiation Meeting (4/13/76). 14. Minutes of APDEA Negotiation Meeting (6/22/77). 15. Sign in sheet for APDEA Negotiation Meeting (6/22/77). 16. Agreement between City of Anchorage and APDEA (undated; proposed on 6/22/77) 17. June 24, 1988 memo from F.W. Jones, Director of Labor Relations to Mayor George M. Sullivan regarding APDEA Initial Proposal of June 22, 1977, Summary of Demands. Witness/Exhibit Lists 18. Minutes of APDEA Negotiation Meeting (9/1/77). 19. Notes from APDEA Negotiation Meeting (9/1/77). 20. Agreement between City of Anchorage and APDEA (undated, 1977). 21. Agreement between City of Anchorage and APDEA (1977/78). 22. [not admitted] 23. Letter of February 14, 1978 from F.W. Jones, Director of Employee Relations to Ken Foster regarding negotiations. 24. Minutes of APDEA Negotiations Meeting (4/3/78) 25. Analysis of 4/3/78 APDEA Contract Proposal. 26. Notes from 1/19/78 APDEA Negotiation Meeting. 27. Notes from 4/19/78 APDEA Negotiation Meeting. 28. Minutes from 4/19/78 APDEA Negotiation Meeting. 29. Minutes from 2/16/79 APDEA negotiation Meeting. 30. APDEA Negotiation Spreadsheet — Article Number, Current, and Proposed 5/15/80. 31. May 16, 1980 memo from F.W. Jones to Mayor George Sullivan regarding APDEA negotiations. 32. May 23, 1980 memo from Neil R. Koeniger, Supervisor of Classification and Pay to Employee Relations Director regarding APDEA proposal costing. 33. Article VII from 5/29/80 Agreement between City of Anchorage, Alaska, and APDEA. 34. Minutes of the June 6, 1980 APDEA Negotiations Meeting. 35. Letter of Understanding regarding Agreement between City of Anchorage and APDEA (undated). 36. VII from 6/11/80 Agreement between City of Anchorage and APDEA. 37. Article IX from 6/11/80 Agreement between City of Anchorage and APDEA. 38. Synopsis of 6/11/80 Proposals (for 6/13/80 APDEA meeting). 39. Brian and Del Concerns dated 6/13/80. 40. [not admitted] - 41. Letter of Agreement dated June 27, 1980. 42. Article VII from 11/18/82 Agreement between City of Anchorage and APDEA. 43. Article VII from 11/28/82 Agreement between City of Anchorage and APDEA. 44. Article VII from 10/28/82 (U-9) Agreement between City of Anchorage and APDEA. 45. Article VII from 10/28/82 (M- 15) Agreement between City of Anchorage and APDEA. 46. Article VII from 11/01/82 Agreement between City of Anchorage and APDEA. 47. Article VII from 11/01/82 (LJ-12) Agreement between City of Anchorage and APDEA. 48. 4/10’s Package. 49. [not admitted] 50. APDEA’s First Proposal of Agreement between City of Anchorage and APDEA dated September 4, 1985. 51. [not admitted] 52. [not admitted] 53. [not admitted] 54. [not admitted] 55. [not admitted] 56. APDEA Agreement Municipal Proposal dated 9/09/85. 57. [not admitted] 58. APDEA Agreement Municipal Proposal dated 9/09/85. 59. [not admitted] 60. [not admitted] 61. APDEA Agreement 11/14/85. 62. [not admitted] 63. [not admitted] Witness/Exhibit Lists 64. APDEA 4th Proposal 11/15/85. 65. APDEA 4 th Proposal 11/16/85. 66. APDEA 4 th Proposal 01/02/86. 67. [not admitted] 68. Analysis of Police Department by Hughes, Heiss & Associates 02/12/86. 69. [not admitted] 70. Letter from Fredric R. Dichter to Chief Brian Porter dated 06/11/86. 71. [not admitted] 72. Handwritten Settlement Agreement Grievances 86-10, 11, 12. 73. [not admitted] 74. 03/16/90 Article VII Hours of Work and Overtime. 75. Findings of Fact and Recommendations dated July - October, 1990. 76. [not admitted] 77. [not admitted] 78. [not admitted] 79. Letter to Tom from Rob Heun, APDEA. 80. Letter to Rob Heun from Thomas Tierney dated 07/27/94 re July 20, 1994 letter/possible change for 4/10 schedule to 45/8 schedule. 81. Letter to Rob Heun from Thomas Tierney dated 07/28/94. 82. [not admitted] 83. Expedited Grievance filed by Deborah Cargill dated 08/01/94. 84. Letter to Deborah Cargill from John Marton dated 08/02/94 re APDEA “Expedited Grievance”. 85. Agreement between Municipality of Anchorage and APDEA, APDEA’s Proposals - Article VII, Hours of Work and Overtime, 09/12/94, 11/03/94. 86. Redlined version Article VII dated 09/12/94, 11/03/94. 87. [not admitted] 88. Letter to Cynthia Todd from Will Aitchison dated 06/18/97 demanding arbitration. 89. Exhibit 2 from Mingo Deposition 90. Grievance Log 91. Meeting Notes dated July 28, 1986 92. APDEA’s Factflnding Brief 93. Arbitration Award by Ken McCaffree (w/o briefs) Witness/Exhibit Lists PROCEEDINGS The Anchorage Police Department Employees Association (“APDEA” or “Union”) initiated this arbitration pursuant to the terms of a collective bargaining agreement with the Municipality of Anchorage (“Municipality,” “MOA” or “Employer”). The dispute arises from the Employer’s decision to unilaterally change the workweek of its patrol officers. The Arbitrator was selected through procedures of the American Arbitration Association and a hearing was held in Anchorage, Alaska on March 12-13, 1998. The APDEA was represented Ray C. Brown of Dillon & Findley. The Municipality was represented by Thomas M. Daniel and Katherine C. Tank of Perkins Coie. The parties agreed that the grievance was properly before the Arbitrator, who has jurisdiction to decide it. The parties also agreed that the liability and remedy phases of this arbitration would be bifurcated. This decision resolves the liability issue. At the hearing, all participants had an opportunity to make opening statements, submit documentary evidence, examine and cross-examine witnesses (who testified under oath), and argue the issues in dispute. The hearing was recorded by a court reporter and a transcript was provided for the Arbitrator’s use. Following the completion of testimony, the parties agreed to make their closing argument in the form of post-hearing briefs. The hearing was closed on May 29, 1998 after receipt of the last of those briefs. Arbitrator’s Opinion and Award - 1 STATEMENT OF THE ISSUE The parties have stipulated that the Arbitrator should resolve the following issues 1. Did the Municipality of Anchorage violate the Collective Bargaining Agreement by unilaterally changing the workweek of patrol officers from four consecutive days of ten hours per day to five consecutive days of eight hours per day without first bargaining with the Anchorage Police Department Employees Association? 2. Assuming a violation of the Collective Bargaining Agreement, what is the appropriate remedy? RELEVANT FACTS The Association serves as the exclusive bargaining representative for Anchorage Police Department Employees holding the rank of sergeant or below. The APDEA and Municipality bargain under a municipal ordinance and have had a bargaining relationship for many years. At the time of the unilateral change in question, they were parties to a collective bargaining agreement (“CBA” or “labor contract”) that will be referred to as the 1990-1994 CBA. Ex. M-8.1 Prior to July 1, 1992, the parties’ 1992 CBA read as follows regarding workweeks: Regular working hours shall consist of a five (5) day week, eight (8) hours a day, forty (40) hours week. The workweek shall be the period from ___________________ 1Exhibits are referred to as either Association (“Ex. A-__”) or Municipality (“Ex. M-__”). Witnesses are referred to by last name, and references to the transcript are by page and sometimes line number (Tr. ___:___). References to exhibits or testimony are intended to be illustrative, not all-inclusive, of evidence in the record that supports a particular statement. Arbitrator’s Opinion and Award - 2 Monday to the following Sunday. If an employee is required to work a sixth day after working five consecutive days, the overtime rate shall apply. Ex. M-2, Article V, § 1. This CBA thus described only one type of workweek for Police Department (APD) patrol officers. This described schedule will hereafter be referred to as the 5/8 workweek (or 5/8’s). Shortly after the 1972 CBA took effect, police administration proposed a four day, 10 hour per day workweek (hereafter 4/10’s) for patrol officers. The Association agreed to a trial period and the parties entered into a Letter of Agreement (LOA) which modified Article 5.1 as follows: Relating to a trial period from July 1, 1972 through December 1, 1972 to develop a ten hour day - four day week for the Patrol Division, the agreement for 1971, Article V - Hours of Work is amended in part as follows: 5.2(a) All authorized work in excess of eight (8) hours per day or forty (40) hours per week shall be paid for at one and one half (1 ½) times the regular rate of pay. Call back time will be considered overtime and will be paid for as such. 5.2(b) Exception to the above shall be made for the numbers assigned to the ten hour day - four day week. The hours then in excess of ten (10) hours per day or forty (40) hours per week will be paid at the one and one-half (1 ½) times the regular rate of pay. Ex. A-2, p.10 (emphasis added). The 4/10 workweek proved popular with both sides, so effective with the 1974 CBA, the Association and Municipality adopted an Article 7.1 which read: “The workweek shall consist of either five (5) consecutive days of eight (8) hours per day or four (4) consecutive days of ten (10) hours per day. Ex. M-3, p.10. Except for an Arbitrator’s Opinion and Award - 3 irrelevant change in 1990, the wording of Article 7.1 has remained the same in all subsequent collective bargaining agreements.2 For the next twenty years, while that wording was in effect, uniformed patrol officers continued to work a 4/10 workweek. Tr. 398, 480. During virtually all post-1974 contract negotiations, both sides submitted proposals to change Article 7.1. The Association’s proposals would have extended the 4/10 workweek to all members of the bargaining unit and would have prevented the Municipality from changing the workweek during the course of a contract. The Employer’s proposals would have specified that the Chief of Police had the discretion to change the workweek to meet the needs of the Department. Neither side’s proposals to modify Article 7.1 was adopted into the labor contract. On two occasions prior to 1994, the Department did move certain Uniformed Field Services (UFS) officers to 5/8 workweeks and in each case received an objection from the Association. In 1986, the Municipality planned to transfer approximately fifteen officers in the Misdemeanor Follow-Up Unit from a 4/10 to a 5/8 workweek without first bargaining with the Association. The Association grieved that change, contending the Employer had an obligation to bargain over the change before it was implemented. Ex. A- 41. Upon receiving notice of the grievance, the Chief of Police agreed to keep the officers on a 4/10 workweek until the issue could be resolved through arbitration. The grievance was then settled prior to arbitration with an understanding that the _______________________ 2 Effective with the 1990 CBA, the words “for regular employees” were added after “workweek”. Exs. M-8, p.14. Arbitrator’s Opinion and Award - 4 Misdemeanor Follow-up officers would remain on the 4/10 workweek. In 1989, the Municipality transferred eight or nine traffic officers from a 4/10 to 5/8 workweek. The APDEA eventually objected to the change, and after discussion the Chief of Police agreed to move the officers back to a 4/10 workweek. During the ensuing contract negotiations for a 1990-1993 CBA, the APDEA successfully negotiated for the addition of Article 5.2(N) into the labor contact. That provision has continued into the present CBA and reads as follows: If the Department implements a change in a current policy or procedure over which the Employer has a mandatory obligation to bargain, or a dispute arises under the light duty section of this Agreement, the designated Association Representative may grieve such change, in writing, to the Chief or his designee. Such grievance must be filed within three (3) working days of receipt of the proposed policy change. To the extent possible, absent emergencies, notice of a policy or procedural change shall be issued one (1) week in advance of the anticipated effective date. Ex. M-8, p.8. The parties also ultimately agreed to leave the wording of Article 7.1 unchanged except for the insertion of the word “regular” to indicate that Article 7.1 applied to just regular employees. This agreement followed a factfinder’s recommenda- tion to adopt that change. The 1990-1993 CBA contained a wage reopener for 1993. In January, 1993, the parties adopted a Memorandum of Agreement extending the contract through 1994 in return for the Association agreeing not to seek any wage adjustment for 1993. Ex. M-8, A year and a half later, while the extended 1990-1994 contract was in effect, the Municipality announced plans to change the work schedule for patrol officers to a 5/8 Arbitrator’s Opinion and Award - 5 workweek that patrol had been on since 1972. The Association immediately grieved the proposed change and demanded arbitration. Exs. M-83, M-88. After the Association was forced to initiate legal action, the Municipality agreed to submit the dispute to arbitration, and the matter eventually proceeded to hearing. RELEVANT CONTRACT LANGUAGE ARTICLE II- SCOPE OF AGREEMENT Section 1. Management Rights. It is recognized that the Municipality retains the right, except as otherwise provided in this Agreement, to manage the affairs of the Municipality and direct its work force. ARTICLE V - BILL OF RIGHTS AND GRIEVANCE PROCEDURE . . . . Section 2. Grievance Procedure . . . . J. The arbitrator shall have no authority to amend, alter or modify this Agreement or its terms and shall limit his recommendations solely to the interpretation and application of this Agreement. K. The decision of the arbitrator will be binding upon all parties hereto. L. Expenses of the arbitrator shall be borne by the losing party, who shall be designated by the arbitrator in his/her decision. N. If the Department implements a change in a current policy or procedure over which the Employer has a mandatory obligation to bargain, . . ., the designated Association Representative may grieve such change, in writing, to the Chief or his designee. Such grievance must be filed within three (3) working days of receipt of the proposed policy change. To the extent possible, absent emergencies, notice of a policy or procedural change shall be issued one (1) week in advance of the anticipated effective date. . . . . Arbitrator’s Opinion and Award - 6 ARTICLE VII - HOURS OF WORK AND OVERTIME Section 1. Workweek. The workweek for regular employees shall consist of either five (5) consecutive days of eight (8) hours per day or four (4) consecutive days of ten (10) hours per day. CONTENTIONS OF THE PARTIES The parties’ respective arguments, although presented in much more detail, can be summarized as follows: Association 1. The patrol division of the Uniformed Field Services has been on a 4/10 workweek since 1972 with no interruptions. The Municipality’s former Labor Relations Manager, John Marton, acknowledged this had been a longstanding practice followed by the Department. The existence of an established past practice thus cannot be disputed. 2. With or without a past practice clause, there is a continuing duty to bargain over changes in mandatory subjects of bargaining. Article 5.2(N), which is in essence a past practice clause, preserves the continuing duty to bargain. The Association negotiated this provision into the 1990 contract so that disputes over unilateral changes would not be resolved by the Municipal Employment Relations Board. Addition of Article 5.2(N), is significant because the contract was no longer silent on the issue of a continuing duty to bargain and disputes over whether a duty existed would be channeled through the grievance procedure of the contract. Agreement to this provision was reached during a private session with the Municipality’s chief negotiator, Mr. Bennett, who also drafted the provision. Because Article 7.1 unquestionably involves a mandatory subject of bargaining, and Article 5.2(N) has incorporated the continuing duty to bargain into the parties’ labor contracts since 1990, the Municipality is required to bargain over changes to the established patrol officer workweek unless the Association waived its right to bargain that issue. 3. The Association has established that it never waived its right to bargain over a change in the work schedules for patrol officers. The burden of proving a waiver rests upon the Employer, and any waiver must be shown to be clear and unmistakable. Arbitrator’s Opinion and Award - 7 There is no clear and unmistakable waiver explicit in the language of Article 7.1, and the evidence does not support an implicit waiver. The 1990-94 contract contains a short, general management rights clause that is insufficient to effect a waiver, and does not contain a zipper clause. No waiver is evidenced by the bargaining history or intent of the parties. 4. Numerous Union witnesses testified regarding the understanding when Article 7.1 was added to the 1974 CBA. According to those witnesses, the provision was viewed as preventing the Employer from changing the 4/10 workweek without first bargaining with the Association. Mention of the 5/8 schedule was not intended to allow the MOA to effect a unilateral change of patrol officers to that schedule. It was included to describe the workweek that all other employees were then working. In contradiction of this testimony, the Municipality presented only one witness who claimed to have any real recollection of the 1974 negotiations. The testimony of that witness should be viewed with considerable skepticism, because it appears his involvement was peripheral, and numerous discrepancies can be found in his testimony. 5. The Employer’s claim that Article 7.1 is clear and unambiguous is belied by its attempt to negotiate “clarifying” language into the 1980 contract. The Association’s refusal to agree to the Municipality’s 1980 proposal to change Article 7.1, its 1985 proposal to change Article 7.3, and proposals of a similar ilk all demonstrate that the Association never waived its right to bargain over this issue. With regard to the 1985 negotiations, the Arbitrator should note that despite its claimed ability to unilaterally change patrol officers to a 5/8 schedule under the then existing contract language, and the potential savings of perhaps as much as $2 million dollars projected by the Hughes, Heiss study, the MOA never attempted to unilaterally move patrol officers to the 5/8 schedule, even though the Municipality was admittedly experiencing a severe economic downturn. If the Municipality actually believed the Chief had the unilateral discretion to direct such a move, it is inconceivable that such a change would not have been made after the 1985 contract negotiations. 6. The Employer’s claim that the Association agreed to MOA’s interpretation of Article 7.1 as part of a 1986 grievance settlement should be rejected. That claim is based upon notes taken by Chief Porter, but the meeting those notes were based on produced no letter of agreement or mutually exchanged documentation confirming the terms of settlement. The Chiefs notes may well reflect his understanding of discussions at the meeting, but the record reveals plenty of reason to question the accuracy of that understanding, especially since the employees in dispute were never placed on the 5/8 workweek. 7. The lack of any waiver of the right to bargain over changes is further revealed by the Association’s objection when the Municipality attempted a unilateral change of traffic patrol officers in 1989. It appears the dispute was resolved before a grievance was Arbitrator’s Opinion and Award - 8 formally filed, but the record also indicates Chief Udland understood that a grievance would be filed asserting a violation of Article 7.1 if the decision was not reversed. The Department agreed not to change the traffic officers to a 5/8 shift, so processing of a grievance never became necessary. 8. The Employer’s contention that during the 1990/1991 negotiations and factfinding, the Association somehow waived its right to bargain for changes in the 4/10 shift should be rejected. The Municipality’s proposals centered on giving it the right to make mid-term changes in virtually any mandatory subject of bargaining without negotiating with the Association. The MOA sought an expanded management rights clause and an expansive zipper clause. None of these proposals made it into the 1990 CBA. Moreover, in a report to the Municipality’s Assembly, the Employer’s chief negotiator described the Municipality’s desire to gain the very right which the MOA contends it always had, i.e., the right to unilaterally change shift schedules. In that document, Mr. Bennett acknowledged that under the current contract, shift schedules could not be altered. That assertion unmasks the fallacy of the Municipality’s arguments regarding waiver. Since the Employer failed to call Mr. Bennett as a witness on its behalf, the Arbitrator should infer that his testimony would have been unfavorable to the Municipality. 9. Going into the 1990 negotiations, the collective bargaining agreement was completely silent about the continuing duty to bargain. Due to the perceived partisan nature of the Municipality’s Employment Relations Board, the Association proposed a maintenance of benefits or past practices clause. It did not achieve a guaranteed maintenance of existing practices, but the Association did gain the addition of Article 5.2(N), which recognizes there is a continuing duty to bargain over changes to mandatory subjects of bargaining like a workweek change. That addition and Article 7.1’s continued silence regarding such changes is significant. 10. The current CBA and prior labor contracts all contain examples of explicit waiver language that was specifically agreed upon. The parties clearly knew what constitutes express waiver language and never included such language in Article 7.1. Whenever the Employer sought to do so, the APDEA rejected such attempts. Whenever the Employer sought to unilaterally change patrol officers to a 5/8 shift without prior bargaining, the Union resisted such attempts. Changes cited by the MOA do not demonstrate otherwise. The Association did not grieve the working of a 5/8 schedule by the traffic sergeant, warrant officers, community service officers and UFS clerks because they were not patrol officers or had traditionally worked a 5/8 schedule so the Association did not perceive this assignment to constitute a unilateral change. The Association never waived its right to bargain over a change of patrol officers from the 4/10 to 5/8 workweek, so the grievance should be sustained. Arbitrator’s Opinion and Award - 9 Municipality 1. The continuing duty to bargain during the life of a contract has an important exception. This obligation to bargain does not apply to mandatory subjects that are already covered by or contained in a collective bargaining agreement. Where, like here, the employer takes action pursuant to a claim of right under the parties’ agreement, the resolution of the refusal to bargain charge rests on an interpretation of the contract at issue. 2. The Arbitrator need go no further than an examination of the plain language of the contract to decide this dispute. The clear and unambiguous language of Article 7.1 allowed the Municipality to make the workweek change that the Association contests. Article 7.1 allows the Municipality to unilaterally select either a 4/10 or 5/8 workweek for any regular employee. Article 2.1, the management rights clause of the contract, allows the MOA to manage the affairs of the Municipality and “direct its workforce.” Together these two provisions clearly authorized the Municipality to move any regular employee from one workweek to another as long as it used either a 4/10 or 5/8 workweek. 3. Since the contract language is unambiguous, extrinsic evidence of intent should not be considered. If it were considered, however, that evidence supports the Municipal- ity’s interpretation. In 1974, the new contract specifically excluded any reference to the Patrol Division working a 4/10 workweek. The clear implication of the change from the wording of the 1972 LOU is that Article 7.1 was intended to permit the Municipality to assign patrol officers to either workweek. It is also significant that in every contract negotiation since 1974, the Association has attempted to change the language of Article 7.1 to require a 4/10 workweek for either everyone or just patrol officers. The fact that the Association has on at least three occasions (1982, 1985 and 1990) unsuccessfully attempted to insert language requiring a 4/10 workweek for patrol officers, and even to include express language requiring negotiation over workweek changes, demonstrates that no such rights exist under the contract. 4. Perhaps most damning to the Association’s interpretation of Article 7.1 is the parties’ discussion of Article 7.1 during the negotiations and factfinding concerning the 1990 contract. The Association’s 1990 proposal, which was rejected by the Municipality and a factfinder, is exactly what the Association now contends that Article 7.1 already means. An arbitrator should not add to a contract by interpretation that which has been so clearly rejected during negotiations. The same is not true for prior MOA proposals because they simply sought to clarify a right which already existed in the contract. No adverse inference should be drawn from rejection of an MOA proposal in 1980 because that proposal was rejected not because of the portion giving discretion to the Chief but because of a part of the proposal that would have eliminated the consecutive nature of the 5/8 workweek. Arbitrator’s Opinion and Award - 10 5. The Municipality’s interpretation of the contract is supported by the parties’ acceptance of the factfinder’s recommendation during the 1990 contract negotiations. The factfinder agreed with the Municipality’s interpretation of the contract language and recommended continuation of the existing contract language. He reasoned that the Association’s proposal unnecessarily intruded on management’s ability to respond to staffing needs and that greater, not less, scheduling flexibility was needed. The parties ultimately adopted the factfinder’s recommendation, which in effect provides a settled construction of the contract language. 6. The parties 1986 settlement of a grievance over the Municipality change of certain patrol officers from a 4/10 to 5/8 workweek also supports the Employer’s position. The testimony of Chief Porter established that grievance was settled with express agreement that the MOA could change workweeks from 4/10s to 5/8s without negotiation. The Employer only committed to meet and confer with the Association. The settlement was broadly worded and clearly intended to have future, precedential effect. This settlement provided a settled construction of the contract language and should be deemed binding in this arbitration because the 1986 grievance and the current one are virtually identical in all respects. 7. The Arbitrator should also note the elimination in 1980 of a provision in Article 7.5 that made changes to shifts, days off, transfers or reassignments subject to the Association’s approval. In its brief during factfinding, the Employer clearly took the position that it had the authority to make changes from a 4/10 to 5/8 workweek without Association approval, and ultimately Article 7.5 was moved from Article 7.5 and transferred to another article, Article 6.14, indicating its provisions were no longer directly connected with the requirements of Article 7.1. 8. The Association has not established any binding past practice that would preclude the challenged change to workweeks. The “practice” of having patrol officers on a 4/10 workweek has not been consistently applied. Over the years, the Municipality has placed groups of patrol/UFS officers on a 5/8 workweek, usually without objection from the Association. This includes traffic officers in 1989, and warrant officers, community service officers, and two uniformed clerks. Even if the Association were felt to have established an agreed past practice of 4/10 workweeks for patrol officers, that practice would be insufficient to override the express, clear terms of the contract. 9. The Employer fulfilled its obligation to bargain in 1990. By agreeing to the language in Article 7.1, after the factfinder’s recommendation, the APDEA waived its right to bargain over workweek changes that were already expressly authorized by the agreement. The doctrine of waiver is inapplicable because a 5/8 workweek was covered by CBA. The fact that no Association representative ever expressly stated during negotiations that it was waiving its right to negotiate changes in the workweek is irrelevant. No clear and unmistakable waiver of the Association’s right to bargain over Arbitrator’s Opinion and Award - 11 the challenged workweek changes was necessary because that change was authorized or covered by the 1980 agreement. 10. By the time the Municipality changed the workweek of patrol officers in 1994, the Employer had repeatedly asserted its right pursuant to Article 7.1 to change the workweek of patrol officers without bargaining. Prior to 1994, the Association had never challenged the Municipality’s interpretation of Article 7.1, not at the bargaining table, not in a grievance, and not in factfinding. The contract language is clear. Patrol officers like other regular employees of the police department can be assigned to either a 4/10 or 5/8 workweek. The bargaining history concerning Article 7.1 reinforces this interpretation of the labor contract. The Municipality acted in accordance with its rights under the agreement when it transferred patrol officers to a 5/8 workweek schedule without first bargaining with the Association. Accordingly, the grievance should be denied. OPINION Pursuant to Anchorage Municipal Code 3.07.090(A), wages, hours and other terms and conditions of employment are mandatory subjects of bargaining. Both sides agree that as a general proposition, the duty to bargain over mandatory subjects continues during the life of a collective bargaining agreement. There is also no dispute that the workweeks of patrol officers is a mandatory subject of bargaining. The issue presented is whether the Employer’s unilateral change falls within an exception to the continuing duty to bargain. Under federal labor law principles, a union or employer’s obligation to bargain does not apply to mandatory subject that have already been addressed in a collective bargaining agreement. [T]he duty to bargain under the NLRA does not prevent parties from negotiating contract terms that make it unnecessary to bargain over subsequent changes in terms or conditions of employment. ‘The union may exercise its right to bargain about a particular subject by negotiating for a Arbitrator’s Opinion and Award - 12 provision in a collective bargaining contract that fixes the parties’ rights and forecloses further mandatory bargaining as to that subject.’ [Citing cases.] ‘[T]o the extent that a bargain resolves any issue, it removes that issue pro tanto from the range of bargaining.’ [Citation omitted.] NLRB v. U.S. Postal Service, 8 F.3d 832, 836 (D.C. Cir. 1992)(emphasis added). See also, Department of Navy v. FLRA, 962 F.2d 48, 53 (D.C.Cir. 1992). The Association contends the proper analysis is whether a party has waived its right to bargain in “clear and unmistakable” language. University of Alaska v. University of Alaska classified Employees’ Ass’n., 952 P.2d 1182, 1185 (Alaska 1998). The Employer relies upon a distinction drawn by the D.C. Circuit Court of Appeals. In a case involving the National Labor Relations Act (NLRA), the D.C. Circuit Court has ruled that a waiver analysis is inapplicable when an employer acts pursuant to a claim of right under a collective bargaining agreement. According to that court, the proper analysis is whether an issue is “covered by” a collective bargaining agreement. U.S. Postal Service, 8 F.3d at 836. I have applied the latter analysis because of a 1989 decision by the Municipality of Anchorage Municipal Employee Relations Board (ERB) which uses a “contained in” analysis that appears comparable to the one used by the D.C. Circuit Court. Municipality of Anchorage & Anchorage Joint Crafts Council Operating Engineers Local 302, Case No. 88-16 (December 5, 1989). The ERB and federal courts have not established a definitive test for determining when an otherwise bargainable matter is “covered by” a public sector collective bargaining agreement. Dept. Of Navy, 962 F.2d at 62. Federal precedent does hold that an employer decision need not be specifically referred to in a labor contract in order to find that it is nevertheless covered by that agreement. Arbitrator’s Opinion and Award - 13 U.S. Postal Service, 8 F.3d at 838. What the lack of specific reference means is a matter of contract interpretation. In a case such as this one, where the employer acts pursuant to a claim of right under the parties’ agreement, the resolution of the refusal to bargain charge rests on an interpretation of the contract at issue. . . Indeed, ‘whether there is a duty to bargain depends solely upon what the contract means.’ U.S. Postal Service, supra at 836-837 (quoting IRS v. FLRA, 963 F.2d 429, 440 (D.C.Cir. 1992) (emphasis added). The Municipality’s claim of right is made under Article 7.1 of the CBA which reads: “The workweek for regular employees shall consist of either five (5) consecutive days of eight (8) hours per day or four (4) consecutive days of ten (10) hours per day.” The Employer views this provision as clearly and unambiguously establishing the Municipality’s right to unilaterally select either a 4/10 or 5/8 workweek for any regular employee, including patrol officers. The Union disagrees, contending that this provision was never intended to allow a previously established workweek to be unilaterally changed without prior bargaining. When a dispute arises over the meaning of a collective bargaining agreement, an arbitrator’s first consideration must be whether an ambiguity exists. Collective bargaining agreements are a unique type of contract, but their interpretation is governed primarily by Arbitrator’s Opinion and Award - 14 established principles of contract law adapted to the collective bargaining context.3 According to one of those principles, where contract language is clear and unambiguous, the evident meaning must be given effect. See, e.g., Elkouri and Elkouri, How Arbitration Works, 358-350 (4th ed. 1985)(citing cases); 17 Am. Jur. 2d, Contracts §241. Courts and arbitrators once considered only the express terms of a contract when deciding whether an ambiguity exists (the “plain meaning rule”). The “context rule” is now the preferred approach; one which this Arbitrator has adopted. The context rule holds that any determination of meaning or ambiguity should be made in view of relevant evidence of the language and conduct of the parties, the objects sought to be accomplished and the surrounding circumstances at the time the contract was negotiated. Peterson v. Wirum, 625 P.2d 866, 871 (Alaska 1981). Evidence of this character is admitted for the purpose of aiding in the interpretation of what is in the contract and not for the purpose of showing intention independent of that instrument. Restatement (Second) of Contracts §212 (1981). According to the Alaska Supreme Court, extrinsic evidence regarding the intent of the parties may be used to interpret a contract regardless of whether the contract appears to be ambiguous on its face or not. Peterson v. Wirum, 625 P.2d at 871. _________________________________ 3 Some arbitrators have argued that general principles of contract interpretation do not apply to collective bargaining agreements. See, e.g., Cox, “Rights Under A Labor Agreement”, 69 Harv. L. Rev. 601, 605 (1956). Most authorities follow the view that principles of contract and statutory interpretation, with necessary modifications, can be of assistance in interpreting collective bargaining agreements. Bornstein and Gosline (eds.), Labor and Employment Arbitration, §14.01[1], p. 14-3 (1990). One recognized exception holds that common-law contract principles do not govern when they conflict with federal labor policy. Restaurant Employees v. Rhodes, 90 Wn.2d 162, 580 P.2d 611 (1978). Arbitrator’s Opinion and Award -15 Language does not automatically become ambiguous merely because parties disagree over the meaning of a phrase. An arbitrator must decide whether, judged in context, a single, obvious and reasonable meaning appears on the face of disputed language. If so, then no ambiguity is present. If plausible contentions can be made for two or more interpretations, then an ambiguity will be said to exist. Northern Ill. Mason Employees Council, 91 LA 1147, 1153 (Goldstein, 1988); Elkouri, supra at 342; Fairweather, Practice and Procedure in Labor Arbitration, 174 (3d ed. 1991).4 A party’s offered interpretation may not ultimately be the one found to best reflect the negotiated intent of contract language, but if that interpretation is one the parties might have conceivably intended, an ambiguity arises. I. ARTICLE 7.1 CONTAINS AN AMBIGUITY THAT REQUIRES INTERPRETATION. Both sides agree that Article 7.1 was intended to indicate that members of the bargaining unit must be assigned to either 4/10 or 5/8 workweeks. In the Municipality’s view, that provision gives it the discretion to thereafter change the assigned workweeks at any time without bargaining over the change. The Association disagrees, contending that once patrol officers had an established workweek, Article 7.1 did not waive the Employer’s duty to bargain over any subsequent change from that workweek. ________________________ 4 Sometimes ambiguity is readily apparent on the face of a contract (“patent ambiguity”). Ambiguity may also arise from language which appears on its face to be clear but which becomes unclear when applied to a specific situation (“latent ambiguity”). Arbitrator’s Opinion and Award -16 Workweek provisions describing two or more possible schedules can reasonably be construed as implicitly permitting a unilateral change between the described schedules. I do not agree that such provisions must always be read in that manner. Where workweek provisions are silent regarding changes between the described schedules, the effect of that silence, and its impact on a continuing duty to bargain, must be determined by the bargaining history and past practice (if any) of each bargaining relationship. II. WHEN ADDED TO THE 1974 CBA, THE NEGOTIATED INTENT OF ARTICLE 7.1 WAS NOT TO ALLOW UNILATERAL WORKWEEK CHANGES AFTER PATROL OFFICERS WERE PLACED ON THE 4/10 SCHEDULE. Evidence as to what was proposed and said during negotiations that lead to adoption of disputed language is frequently a valuable aid in the interpretation of ambiguous contract language. See, e.g., Tri-County Metro, 68 LA 1369, 1370 (Tilbury, 1977); Fairweather, Practice and Procedure in Labor Arbitration, 207-210 (2d ed. 1983). Where the meaning of a term is not clear, it will be deemed, if there is no evidence to the contrary, that the parties intended it to have the same meaning as that given it during the negotiations leading up to the agreement. Elkouri, supra at 357. Intent can be manifested in many ways during negotiations, e.g., through the express language of proposals, through discussions at the bargaining table, through the acceptance or rejection of proposals and counter-proposals. Arbitrator’s Opinion and Award - 17 [T]he quarry of the arbitrator and the spoor that he follows is the agreement of the parties, and this can be evidenced by many things not placed in cold print. Peter Seitz, Industrk2l and Labor Relations Review, Vol. 21, No. 3 (April 1968), p. 428 The record indicates that bargaining for the 1974-1975 CBA began in the Fall of 1973, but was then interrupted when the city manager, who had been serving as the Employer’s chief spokesman, resigned. Before bargaining resumed, the Association affiliated with the Teamsters Union, and returned to the bargaining table with Jesse Carr as its chief spokesman.5 The Employer’s chief negotiator was a local attorney Allen McGrath. Because the 4/10 trial period for patrol officers had proven very popular with patrol officers, the Association proposed that this workweek be adopted for all police department employees. The Employer indicated it had no problem with continuing the 4/10 schedule for patrol officers, but felt that schedule was not productive or cost effective in other Department units so it would not agree to adopting a 4/10 workweek for all APD employees. Tr. 258:5-11 (Koeniger); Tr. 60-61 (McCartney). Mr. Carr is deceased, but two Association witnesses, who were involved in the 1974 negotiations, testified at the arbitration hearing. Stanley McCartney is a two time past President of the Association. McCartney testified that mention of a 4/10 workweek was added to Article 7.1 to indicate that had become the designated workweek for patrol officers. The reference to a 5/8 schedule was intended to describe the shift that all other ____________________________ 5 Carr was Secretary-Treasurer of Teamsters Local 959 and a very powerful state labor leader. Arbitrator’s Opinion and Award -18 Department employees, including clerical and detectives, were then working. According to McCartney, there was never any discussion suggesting the Municipality could change patrol from the 4/10 shift without prior bargaining with the Association. Q. . . . What do you base your understanding that 4/10s in Exhibit 3 applied to or pertained to patrol shift versus detectives or other people in the department? A. Oh, that was discussed. Patrol would continue to work the four 10- hour days, but the City was not willing to include other personnel. But as it being a major stumbling point, we didn’t push for everybody to be included; and the City seemed happy enough with the patrol working the 10-hour days, and that was the way it was to continue. Q. Would you — given the tenaciousness of what you were talking about in the bargaining process, would the Union’s bargaining team have agreed to that? A. No. Tr. 62:20-25, 63:1-14 (emphasis added). Ralph Mingo was serving as President of the Association during the early part of negotiations for the 1974 CBA. Mingo also participated on the APDEA negotiating team. He concurred with McCartney’s assertion that having patrol officers continue to work the 4/10 shift was specifically discussed, and that there was no discussion about the Municipality having a right through the adoption of Article 7.1 to unilaterally change that shift without prior bargaining over any change. Deposition Tr. 19, 21-22. Arbitrator’s Opinion and Award - 19 The Employer notes that the 1972 LOU specifically referred to patrol officers as working the 4/10 schedule, but the 1974 contract language in Article 7.1 does not. The Municipality contends the clear implication of this change was to permit the MOA to assign patrol officers to either workweek. That is a plausible implication, but testimony by one of the Employer’s own witnesses convinces the Arbitrator that no such implication should be found. Neil Koeniger is the only member of the Employer’s former bargaining team who testified regarding negotiations for the 1974-75 CBA. According to Koeniger, he attended every bargaining session and understood Article 7.1 gave the City the flexibility to transfer bargaining unit members from one workweek to another during the life of the contract. There are no documents that confirm the fact that Koeniger did serve on the bargaining team for this contract. I therefore share the Association’s skepticism about whether Koeniger attended every bargaining session as claimed, but Koeniger does appear to have attended a bargaining session that witnesses for the Association also recalled. An incident at that session provides a revealing insight into what the parties likely understood Article 7.1 to mean back in 1974. Witnesses for both sides described a bargaining session when the APDEA was still trying to persuade the Employer to adopt the 4/10 workweek for all Department employees. At one point, while making the argument that, as a matter of equity, the Employer should adopt one consistent workweek for the entire bargaining unit, Jessie Carr suggested that if the Employer would not do that with the 4/10 schedule, then the Arbitrator’s Opinion and Award - 20 Union might accept having everyone back on the 5/8 schedule.6 The rest of the APDEA bargaining team was so shocked and angry at this suggestion that they would accept a change to the 5/8 schedule that they got up and walked out of the session. Mingo Deposition Tr. 26; Tr. 260 (Koeniger). As Koeniger recalled with some amusement, the APDEA negotiating team then had a “very loud and lengthy caucus in the parking lot.” Tr. 260:17-18. Having a bargaining team walk out on someone who was then acknowledged to be the most powerful labor leader in the State of Alaska is certainly a memorable occasion. It should also have made clear to the MOA bargaining team must how strongly patrol officers felt about any change from the 4/10 schedule. In cases where each side may have had a different intent regarding the application of contract language, this Arbitrator follows the rule that an undisclosed intent cannot prevail in the face of language whose intent was manifested in some way at the bargaining table. See, e.g., 17 Am Jur 2d, Contracts §248, p.641; Kahn’s and Company, 83 LA 1225, 1230 (Murphy, 1984). Alaska courts follow this same objective theory of contracts; focusing on objective evidence of intent that was manifested during negotiations as compared to subjective intent one party may have had but not mentioned. Differences of opinion among the parties as to their subjective intent, expressed during the litigation, do not establish an issue of fact regarding the parties’ reasonable expectations at the time they entered into the contract, since such self-serving statements are not considered to be _____________________________ 6 Carr did not like the idea of bargaining unit members working 10 hour days without overtime, and tried to talk the other APDEA negotiators out of their preference for the 4/10 schedule. Tr. 62 (McCartney). Arbitrator’s Opinion and Award - 21 probative. Rather, the court must look to express manifestations of each party’s understanding of the contract in attempting to give effect to the intent behind the agreement. Peterson v. Wirum, 625 P.2d at 870. The Association concedes that it was unable to get the Municipality to guarantee that the 4/10 workweek would be maintained throughout the term of the CBA. Lack of a guarantee does not automatically equate to a right to make unilateral changes mid term. As the Union correctly notes, a collective bargaining agreement can take one of four different approaches to the continuing duty to bargain over midterm changes: (1) it can bar any change from existing practice (such as the 4/10 workweek for patrol officers); (2) it can waive that continuing duty to bargain and thus free an employer to make unilateral changes whenever it wants; (3) the contract can be left silent as to the negotiability of a particular issue and thereby leave disputes for resolution by the Anchorage ERB; or (4) the contract can expressly recognize the continuing duty to bargain, channel disputes over negotiability into the grievance procedure of the CBA, and thus send dispute for resolution by an arbitrator. The Carr incident provides persuasive reason for concluding that Article was not adopted as a waiver of the duty to bargain if the Employer later wanted to make a midterm change to the 4/10 workweek. It demonstrates that Municipality negotiators were aware that keeping 4/10’s for at least the patrol officers was so important to the Union bargaining team that they were willing to angrily walk out on their own chief negotiator. Because of that incident, I find implausible the claim of Mr. Koeniger that Arbitrator’s Opinion and Award - 22 Article 7.1 was understood to allow the City to transfer patrol officers to a 5/8 workweek whenever it chose to during the life of the contract. The bargaining history is instead persuasive that Article 7.1 was adopted with an understanding that it would serve as neither a bar to such a change nor a waiver of the Employer’s duty to bargain over any planned change. Mr. McCartney’s acknowledgment that detectives could still be moved from 5/8s to 4/10’s without amending the agreement “if there was an agreement between the parties” does not undermine the foregoing conclusion. Pr. 61. The Association concedes Article 7.1 will allow workweek changes without any contract amendment, when there is mutual agreement to the change. Thus, if the Employer had eventually been convinced to move detectives to the 4/10 schedule, there would have been no need for a contract modification. The Union’s position also does not prevent the Municipality from ultimately implementing a change without APDEA agreement, so long as the MOA first meets its bargaining obligation, i.e., by bargaining to impasse and then prevailing at interest arbitration (if invoked). As far as bargaining for the 1974 CBA is concerned, the critical issue is whether Article 7.1 was understood to simply describe the two workweeks that were in use or was also understood to permit changes between those two workweeks without prior bargaining. I find the record of initial negotiations convincing that when Article 7.1 was first agreed upon, it was understood to implicitly preserve the Association’s right to bargain over midterm changes between the described workweeks. Arbitrator’s Opinion and Award - 23 III. THE PARTIES’ SUBSEQUENT COURSE OF CONDUCT DID NOT CHANGE THE NEGOTIATED INTENT OF ARTICLE 7.1 After Article 7.1 was adopted, it is certainly possible that the intended application of that provision could change over time. I have therefore considered the parties’ subsequent course of conduct. The record indicates that in subsequent contract negotiations, each side attempted to negotiate changes to Article 7.1 that would have expressly affected the continuing duty to bargain that had been implicit when first adopted. Neither successfully did so. Moreover, for the next twenty (20) years, patrol officers continued to work the 4/10 schedule. These facts provide strong support for the Union’s position in this case. Negotiations for the 1975-1977 CBA When the APDEA and Municipality were negotiating a successor to the 1974-75 CBA, Article 7.1 was again a topic of discussion. Former Lieutenant Ken Foster was President of the APDEA and also a member of the Association’s bargaining team during negotiations for this contract. Tr. 73-74. According to Foster, both sides entered negotiations with the assumption that patrol officers would be working the 4/10 schedule. The parties’ discussions thus focused on an Association proposal to extend the 4/10 workweek to all Department employees. Tr. 76:15-20. That proposal was rejected and Article 7.1 was carried over from the 1974-75 CBA with no change to its wording. The testimony of Lt. Foster was persuasive that during this set of negotiations, the Municipality never express the view, at least at the bargaining table, that continuation of Arbitrator’s Opinion and Award - 24 Article 7.1 would mean the Municipality had the unilateral right to change patrol officers back to the 5/8 workweek. A. ....We wanted it in the contract that patrol would work 4/10’s; that’s the reason we did it. As far as them changing their mind later on, no. Q. Had they told you at the negotiating table that they considered Article VII, Section 1 gave them the unilateral right without bargaining to revert patrol from 4/10’s to 5/8’s, would the negotiating team have agreed to that? A. Never. Q. Why? A. .... We felt once we got it in the contract that the only way it could be possibly removed was through negotiations,…. Tr. 77:6-21. Extension of the 1975 - 77 CBA In September 1979, after proceeding to interest arbitration for the first time under the municipal code, the parties agreed to keep the terms and conditions of the 1975-1977 labor contract in effect through June 30, 1980 subject to certain specified modifications. Ex. M-4. No modifications were made to Article 7.1. Prior to interest arbitration, the parties had reached tentative agreement to just continue that language unchanged. Ex. M- 4. I have considered Employer exhibits regarding bargaining that occurred prior to the tentative agreement regarding Article 7.1. Those documents do not undermine the Association’s position in this case. If anything, they strengthen it. The Association’s initial proposal was to drop the reference to a 5/8 workweek from Article 7.1. Ex. M-16. The proposal that Article 7.1 only refer to a 4/10 workweek Arbitrator’s Opinion and Award - 25 was intended to achieve the Association’s constant goal of getting everyone in the Department onto that workweek. If that had been the only workweek referenced by Article 7.1, the Municipality would necessarily have been unable to make any change to that workweek during the term of the contract. The APDEA never achieved that change and concedes that by rejecting its efforts, the Employer maintained the possibility of a mid-term change to the workweek, but only after satisfying its duty to bargain over any such change. According to minutes of a negotiating session held on September 1, 1977, the entire discussion regarding Article 7.1 was focused on the APDEA’s efforts to persuade the Employer that a 4/10 workweek made sense for APD employees still working a 5/8 schedule. The Union contended the Municipality would experience overtime savings and the schedule would be good for morale. The City’s spokesman offered to consider the Association’s arguments and respond later. Ex. M-18, p.4-5. A subsequent discussion of starting times for shifts did not involve Article 7.1, but I do find it lends support to APDEA insistence that during Article 7.1’s initial existence, the Employer had not been contending it could unilaterally change the established workweeks for patrol whenever it chose to do so. The minutes describe then Chief of Police C.G. Anderson as stating that: “the Chiefs office has in every case gone to the Association to get agreement on all shift changes.” Ex. M-18, p.5. Changing from a 4/10 to 5/8 workweek would have an obviously greater impact on an officer’s personal life than changes to when a particular shift was scheduled to start. If the Department had been going to the Association to get agreement whenever the latter changes were desired, then Arbitrator’s Opinion and Award - 26 I find it unlikely the Department had ever expressed the view to the Association that the MOA had unfettered discretion to change patrol officers’ entire workweeks. The Municipality eventually indicated that the 4/10 workweek was too expensive and expressed the view to the Association that the 4/10 schedule was intended to meet the Department’s scheduling needs, not just provide an employee benefit. Ex. M-28, p.5. That latter remark seems in obvious response to the Union’s contention that the schedule would be good for morale. Minutes of the meeting show an Association negotiator acknowledging the Employer’s point. Id. Assuming the minutes are correct, this remark does not amount to an acknowledgment that scheduling needs would allow the Department to change the workweeks for patrol officers whenever the Municipality wanted. The parties’ ultimate agreement to make no changes to Article 7.1, and later agreement to extend the 1975-1977 CBA through mid 1980, means that for the first sixteen years of its usage, Article 7.1 was kept in effect without any convincing evidence that the Employer claimed an entitlement under that provision to effect a unilateral change to the 4/10 workweek of patrol officers. Negotiation of the 1980-1982 Agreement By the time of negotiations for the 1980-1992 CBA, APDEA had disaffiliated from the Teamsters and decided to negotiate their own agreement. A local attorney, Fred Dichter, was retained to serve as the Association’s spokesman. Ex. M-3l. As it always had, the Union continued to seek just one common workweek, the 4/10 schedule, for all Arbitrator’s Opinion and Award - 27 members of the bargaining unit. It failed to achieve that goal. In response to the Association’s efforts to make the 4/10 workweek unchangeable, the Municipality made the following proposal: The workweek shall consist of four (4) consecutive days of ten (10) hours per day for those operations so designated by Chief of Police. Unless otherwise agreed all other employees shall work a forty (40) hour week of five (5) eight (8) hour days. The establishing or maintaining of such work week shall be subject to the needs of the Department as determined by the Chief of Police. Ex. A-23, p.1. This provision would have specifically allowed the kind of midterm workweek changes that are at issue in this case. The proposal was never adopted because the Association objected, and the Employer never sought to achieve that language through interest arbitration. The Municipality now claims this proposed change was simply to clarify, through explicit language, a right it thought had been implicit ever since Article 7.1 had been adopted.7 Because of the bargaining history leading up to these negotiations, I find that assertion unpersuasive. I particularly reject, as patently implausible, Mr. Koeniger’s contention that the Association’s only objection to the Employer’s proposal was to the fact that the 5/8 schedule would not have to be consecutive days. Tr. 313- 318. I find more credible the testimony of John Strutko, who was President then of the APDEA and part of the bargaining team. According to Strutko, the Association made clear that its _____________________________ 7 The MOA also characterizes as “clarification,” its proposal to change what was then Article 7.5 of the contract to exclude changes from a 4/10 to 5/8 shift schedule from the existing requirement in Article 7.5 that any “shift changes” be subject to the Association’s approval. Ex. A-28, p. 12-13. The Employer did not achieve this proposed clarification. Arbitrator’s Opinion and Award - 28 objection extended to the portion of the Municipality’s proposed change to Article 7.1 that was designed to give discretion to the Chief. Tr. 90: 15-25, 91:1-3. Since the contract was settled with the language of Article 7.1 unchanged, I conclude the Association preserved its right to bargain over any midterm changes to the 4/10 workweek that patrol officers had been on since 1972. Negotiations for the 1982-1985 CBA During negotiations for the 1982-1985 labor contract, the Municipality sought no change to the wording of Article 7.1, but the Association continued its efforts to switch all members of the bargaining unit over to the 4/10 schedule. The Employer continued to refuse to adopt just that workweek, and the parties ultimately agreed to leave the language unchanged. The Association did not get a commitment that the Municipality would not seek to change patrol officers from the 4/10 workweek at some point during the contract but neither does the record support a conclusion that the Association waived its pre- existing right to bargain if there was a proposed change. Negotiations for the 1985-1989 CBA Bargaining for the next contract commenced in 1985 at a time when the Municipality was experiencing a significant decline in revenue because of a dramatic decline in oil prices. These negotiations ultimately led to a new contract that remained in effect through 1989. Ex. M-7.8 In its opening proposals, the Association again sought a commitment that all bargaining unit members would work a 4/10 workweek for the duration of the contract. __________________________ 8 The parties initially bargained a collective bargaining agreement for 1985-1988. Subject to some modifications that did not effect provisions relevant to this dispute, the 1985/88 CBA was extended through 1989. Ex. M-7, Letter of Agreement dated October 15, 1987. Arbitrator’s Opinion and Award - 29 Ex. A-30. The Employer proposed no change to Article 7.1, but it proposed a significant change to Article 7.3. In the predecessor contract, Article 7.3 read as follows regarding starting time: One regular starting time shall be established for each shift. An established starting time may not be changed prior to the next monthly shift roster without the concurrence of the Association and the Chief of Police. Ex. M-6 (emphasis added). The Municipality’s proposed revision would have changed Article 7.3 to read: Shifts and starting times shall be established and amended as determined necessary by the Chief to meet operating requirements for the Department. Notice of shifts and shift assignments shall be provided to employees in writing. Ex. A-30 (emphasis added). Both sides had a tendency to refer to the 4/10 and 5/8 workweeks as “shifts.” In fact, MOA’s explanation of one of its proposals during the 1980 negotiations had referred to the 4/10 and 5/8 workweeks as “shift schedules.” Ex. A-28, p. 12. The Association understandably feared that the proposed change to Article 7.3 would be considered a waiver of its right to bargain a “shift” change from 4/10’s to 5/8’s or vice versa. APDEA negotiator Gereth Stillman convincingly testified that the Association’s bargaining team found this proposal very unacceptable. Q. While you were on the bargaining [team], would you have ever or would the Association members — would you have ever agreed to that proposal at the bargaining table? A. No. Quite frankly, we wouldn’t have brought that to the membership because the membership would not have accepted that. Arbitrator’s Opinion and Award - 30 Q. What would your popularity rating have been with the membership had you come back with that — a tentative agreement in that area? A. Given they all carry guns, I probably wouldn’t be here today. Tr. 113: 1-12. The Association refused to agree to the Municipality’s proposal, which was ultimately withdrawn in November, 1985. Ex. A-30, Pr. 113, 117 (Stillman). The Municipality’s claims its efforts to obtain this change to Article 7.3 had nothing to do with Article 7.1. I find that assertion unpersuasive. Former Chief of Police Brian Porter acknowledged that he considered the movement from 5/8s to 4/10s or vice versa to be a “shift” change. Tr. 413:23-414:2. John Alexander is a former Labor Relations Manager for the Municipality. At the time of these negotiations, he was responsible for administering the Association CBA. Alexander testified that he believed the change to Article 7.3, if adopted, would have given the Chief of Police the complete discretion to take patrol off the 4/10 workweek. Tr. 149. If the Employer had successfully negotiated the change it was seeking, I have little doubt it would have then sought to apply Article 7.3 to workweek changes. While these negotiations were pending, the Municipality hired a consulting firm to analyze operations of the APD as part of a continuing effort to find ways to cut costs. The resulting report from Hughes, Heiss & Associates (Hughes-Heiss study) included a recommendation that the Municipality consider transitioning to a 5/8 workweek for patrol operations. The study projected a total annual cost savings ranging from $685,000 to $2 million depending upon whether a dedicated traffic unit was formally eliminated. Ex. M- 68 at iv-vi. Arbitrator’s Opinion and Award - 31 When the Hughes-Heiss study was discussed at the bargaining table, the Employer offered to guarantee there would be no proposed changes to the 4/10 schedule if it could get a sufficient package of economic concessions from the Association. Tr. 285 (Koeniger). The APDEA did propose a possible package, and the Municipality countered with some modifications but ultimately the Association decided the Employer wanted too much. Ex. M-48, Tr. 290 (Koeniger). During discussions regarding the possible package of concessions, the Municipality mentioned the possibility that the Anchorage Municipal Assembly might decide to pass legislation removing workweeks as a mandatory subject of bargaining. Tr. 288. The APDEA indicated it was willing to run that risk, and the parties ultimately agreed to just continue the language of Article 7.1 as originally adopted in the 1974 CBA. Tr. 290. What I find significant about this bargaining table exchange is the APDEA’s expressed willingness to take its chances on whether the Anchorage Assembly would remove workweeks as a subject of bargaining. The APDEA would have had nothing to risk, if it had already waived its right to bargain over changes to the existing workweeks by agreeing to Article 7.1. The Employer contends the APDEA’s rejection of the 4/10 commitment in return for economic concessions is evidence the Municipality could change that workweek. I cannot agree. The issue in this case is not whether the Employer could propose a midterm change. The Association concedes as much. It readily admits that despite repeated attempts to negotiate language into the contract to bar any possible change, the Association was unsuccessful. That does not automatically mean the Association was agreeing that a proposed change could be implemented without prior bargaining. Arbitrator’s Opinion and Award - 32 APDEA’s repeated refusal to agree to any Employer proposals that would have spelled out the Chiefs discretion to switch patrol officers to the 5/8 schedule belies the Municipality’s claim to the contrary. So does a contract change that both sides actually agreed upon during this series of bargaining. At the Association’s request, the Municipality agreed to pay a 5.5% wage premium to patrol officers who were assigned to investigations for more than six months. Ex. M-7, Article 16.a. That contractual provision says the wage premium was provided “in recognition of the specialized skills required,” but the premium was proposed by the Association as an incentive for patrol officers to leave the 4/10 shift and thus provide better applicants for the detective division. Tr. 168 (O’Brien). I agree with the APDEA that it is hard to understand why the Employer would have accepted such a proposal at a time of significant economic distress, if it felt it had the right under the contract to simply change all workweeks to the 5/8 schedule.9 I have considered testimony by Neil Koeniger that he believes the Association understood the Municipality had the ability under Article 7.1 to simply move everyone to the 5/8 workweek without any bargaining. Tr. 304. Former Chief Porter was also involved in the negotiations, and the Chief didn’t “remember” anyone from the Union indicating the contract prevented him from making such a change. Tr. 401. The __________________________ 9 During the period of approximately 1985 through 1988, the Municipality decreased its workforce from a high of over 4000 employees to a low of 2900 employees. Tr. 293. Arbitrator’s Opinion and Award - 33 persuasive force of the testimony by these witnesses was again undermined by the Employer’s former Labor Relations Manager, John Alexander. Alexander expressed the view that Article 7.1 required the Municipality to make changes to the 4/10 workweek through the bargaining process, not unilaterally. My understanding was that . . . . the patrol persons were on 4/10’s; the others were on 5/8’s, and that there had to be — there was no room for a unilateral change in that schedule or that language. Q. And what is the basis of that understanding? A. That was a long-standing practice that had been followed by the police department and the Muni administration. Tr. 145:4-12. If the Employer’s own Labor Relations Manager did not understand Article 7.1 as amounting to a waiver of the Association’s right to bargain over a proposed change to the 4/10 workweek, it hardly seems likely that the Association’s bargaining team did so. Weighing the foregoing considerations, I find the history of bargaining for the 1985-1989 CBA lends further support for the APDEA’s position in this case. The 1986 Misdemeanor Follow-Up Grievance In June 1986, the Department announced plans to transfer approximately fifteen (15) uniformed officers in the Misdemeanor Follow-Up Unit from a 4/10 workweek to a 5/8 workweek without first bargaining with the Association. According to Chief Porter, the purpose of the planned change was to put misdemeanor follow-up on the same schedule as their counterparts who investigated felonies. Tr. 418-419. Arbitrator’s Opinion and Award - 34 Former APDEA President Alan Kraft was part of the Misdemeanor Follow-Up unit at the time of these events. He testified that although there was discussion about the change, the officers in that unit never actually moved from the 4/10 to 5/8 workweek. Tr. 479:12-15, 480:24-25. In his letter of June 10, 1986 to the Association’s attorney, Chief Porter said he was willing to “revert” to the 4/10 schedule until the matter was heard at arbitration. Ex. A-41, p.4. That letter could be read as indicating the officers had actually begun working on the 5/8 schedule, but during the Chiefs testimony at the hearing, he agreed that the officers had been “allowed . . . to stay as 4/10s.” Tr. 419:19-23. Neil Koeniger’s recollection was clearly unreliable. He initially claimed the officers changed workweeks and stayed on the changed schedule. Tr. 298:22-23, 301:8-12. Koeniger later conceded he did not know. Tr. 356:1-15. Mr. Kraft’s recollection would appear to be the most reliable since he would have been personally affected, so I conclude that misdemeanor follow-up officers never started or moved to the 5/8 schedule. Upon learning of the Chiefs plan, the Association quickly filed a grievance. The Municipality points out that the grievance and accompanying letter from the Association’s chief negotiator did not initially allege a violation of Article 7.1. It alleged violations of Article 5.2(k), Article 9.5(a), and Article 6.14. Article 5.2(k) first appeared in the 1982-1985 CBA, and read in relevant part: If the Department implements a change in a current policy or procedure which the Association believes violates the terms or conditions of this agreement, . . ., the designated Association Representative may grieve such change, in writing, to the Chief or his designee. Such grievance must be filed within three (3) working days of receipt of the proposed policy Arbitrator’s Opinion and Award - 35 change. To the extent possible, absent emergencies, notice of a policy or procedural change shall be issued one (1) week in advance of the anticipated effective date. The parties shall agree to a standing panel of arbitrators to hear policy or procedural grievances. When such a grievance is filed, the arbitrator must hear the grievance within two (2) working days of receipt by the Chief and shall render a decision within two (2) working days of the conclusion of the hearing. Ex. M-7. This provision established an expedited grievance procedure to determine when a unilateral change was in violation of the contract. As noted earlier in this decision, the APDEA does not contend that requiring patrol officers from a 4/10 to 5/8 workweek will automatically violate the parties’ contract. It contends the change cannot be made until the Employer has satisfied its bargaining obligation with the Association. That is a fine distinction but an important one. According to a letter that accompanied the grievance, the APDEA had not yet decided whether it would ultimately object to the proposed change, but it clearly felt there needed to be prior notice to the Association and discussion. Ex. A-41, p.3. As soon as then Chief of Police Brian Porter expressed the view that Article 7.1 expressly allowed the unilateral change without bargaining, the Association’s representative immediately put the Employer on notice that the Union then felt the change would violate Article 7.1. Id., pp. 4 and 6. The more critical issue is what weight to give the manner in which the grievance was ultimately settled. Both sides agree that the grievance was mutually resolved prior to arbitration. They disagree as to the basis for the ultimate settlement. The Municipality contends the dispute was settled in October 1986 with an agreement that the Employer Arbitrator’s Opinion and Award - 36 would “meet and confer” with the APDEA before making future changes in the workweek from 4/10s to 5/8s. To support this assertion, it relies on the recollection of former Chief Brian Porter, and a former negotiator, Neil Koeniger. Mr. Koeniger’s recollection of events was clearly incomplete or erroneous at times. For example, he was unaware the Chief had rescinded the change while the grievance was pending, and erroneously claimed that part of the settlement left the workweek changed. ‘Tr. 354-355, 298:22-299:2. As noted earlier, credible testimony from Officer Kraft established otherwise. Tr. 479: 12-15, 480:24-25 (Kraft). Koeniger also seemed at times to be confusing a meeting where Grievance 86-12 was resolved with an earlier meeting to discuss rumors that the Department was going to change the Uniformed Field Services to a 5-9 schedule. Tr. 304, 353-354. I do not find Mr. Koeniger’s testimony to be a reliable basis on which to draw any conclusions regarding an agreed interpretation of Article 7.1. The only other witness to describe the grievance settlement was Chief Porter. The Chiefs recollection was based on his review of Municipality Exhibit 72, which Porter described as his notes of the settlement reached at an October 30, 1986 meeting. The notes do not show who was part of the settlement discussion and the notes describe a “Settlement Agreement” for three grievances, not just the one regarding misdemeanor follow-up officers (Grievance 86-12). Porter’s notes say that Article 5.2(k) will apply to changes in management policies that affect the hours of work, wages, benefits and conditions of work such as shift schedules and days off. They also say “APDEA agrees that within the provisions of meet Arbitrator’s Opinion and Award - 37 & confer provided by Article V, Sect. 2(k), the department may change shifts currently working 4/10s to 5/8s.” Ex. M-72, p.2. I don’t doubt the Chiefs notes reflect what he thought was the outcome of the meeting, but there is reason to question whether his notes accurately reflect what the Association understood the resolution to be. He makes no mention in those notes, for example, that the misdemeanor follow-up officers would remain on the 4/10 schedule, yet Officer Kraft convincingly testified that in fact they did. If proven to exist, an oral agreement can be just as binding and enforceable as a written agreement. The party asserting the existence of an oral agreement bears a heavy burden of proof, however. James River Corp., 92 LA 533, 538 (Neas, 1989); Northern Ill. Mason Employers Council, 91 LA 1147, 1153 (Goldstein, 1988). One of the principal reasons for reducing an agreement to writing is to ensure there really was a meeting of the minds and to confirm the agreed terms of any agreement. When a party chooses to document the terms of a settlement without providing a copy to the other party for approval, that party producing the unsigned documentation runs a considerable risk that its evidence will later be found insufficient. In the instant case, I don’t doubt that Grievant 86-12 was mutually settled, but I do find the Chiefs notes to be an insufficient basis to conclude the basis for settlement was as described in those notes. There is no evidence that his description of the “settlement” was ever shown to the Association or memorialized in any document that both sides Arbitrator’s Opinion and Award - 38 would have approved.10 The Municipality did not produce any letter of agreement, memorandum of understanding or written grievance resolution signed off by both sides, despite the fact that the parties documented numerous side agreements and attached them to the 1985 CBA. I realize this documentation is not done in every case, but it seems entirely implausible that the kind of agreement described in Chief Porter’s notes would not have been confirmed in some manner through documentation sent to the Association. The Municipality’s Employee Relations Department maintains a log of grievances. That log does indicate a meeting regarding Union Grievance 86-12 was held on October 30, 1986. The only description of the outcome reads: “APD agrees that any change in policy will not occur w/o prior notification to union.” Ex. M-90. There is nothing in the log entry that indicates the APDEA conceded that after notification the Employer could thereupon change officers from a 4/10 schedule to 5/8s without bargaining upon request. Had that in fact been the agreement, something the Municipality had been trying to get written into the contract in recent years, the Employee Relations Department would likely have been quick to document the settlement in a more formal manner. I agree with the Employer that a precedential settlement by mutual agreement deserves considerable weight when that settlement specifies the intended application of contract language. One must still be careful not to read too much into grievance ___________________________ 10 Will Aitchison, the Association’s current negotiator, testified that in 1989 he catalogued every piece of paper in the Union’s files and found no document memorializing the settlement of the misdemeanor follow-up grievance. Tr. 459. Arbitrator’s Opinion and Award - 39 settlements whose terms are not formally documented. Some settlements do not reflect agreement as to what was originally negotiated but simply reflect compromises one or both sides are willing to make in order to maintain labor peace, avoid the costs of proceedings to arbitration, and/or avoid the uncertain result of an arbitration. See, e.g., Scott & Fetzer, 79 LA 1091 (Sabgher, 1982). The Municipality’s evidence regarding Grievance 86-12 is too inconclusive to credit as an agreed interpretation of Article 7.1, especially when the claimed interpretation is inconsistent with the Association’s stance during twelve years of prior bargaining history, and with the fact that the decision to move the misdemeanor follow-up officers was apparently rescinded.11 1989 Unilateral Change of Traffic Officers In 1989, the Municipality tried another unilateral change that was again challenged by the Association. A decision was made to move eight or nine traffic officers from the 4/10 workweek to a 5/8 schedule. Tr. 430 (Udland). There may have been some delay, but current Chief of Police Duane Udland admits the Association did challenge the decision, and it appears the APDEA Board did vote to file a grievance. Tr. 460-461 (Aitchison). The grievance was not formally processed, however, because an informal resolution was reached with Deputy Chief Udland. _______________________ 11 The same is true of the Municipality’s evidence regarding a meeting held between Association representatives and the Mayor in July 1986, when rumors were circulating about a possible change of UFS officers to a 5-9 workweek. I have therefore given that evidence no weight. Arbitrator’s Opinion and Award - 40 The Municipality contends the Association never expressed the view that Article 7.1 precluded this workweek change. Chief Udland, the deputy chief back then, did not remember any APDEA representative saying that, but judging from Udland’s description, the issue was being discussed informally without much discussion about the contract. Tr. 440:19-21. Before it became necessary to formally process a grievance, a meeting with the traffic officers persuaded Chief Udland to drop the idea of making a change. Tr. 433:10-11.12 Udland acknowledged that if he had not agreed to keep the officers on a 4/10 schedule, he understood any formal grievance would have alleged a violation of Article 7.1. Tr. 43 1:8, 448. Consequently, the Municipality’s evidence about this aborted unilateral change is not persuasive that the Association acted in a manner inconsistent with its present position that Article 7.1 does not allow for workweek changes without prior notice and bargaining.13 _________________ 12 Udland did keep a traffic sergeant on the 5/8 schedule, but that individual had always been working that schedule so the Association did not have any change to contest. Tr. 463 (Aitchison). The same is true for the claim that warrant officers, community service officers and uniformed clerks have worked a 5/8 workweek without objection. Where there is no change from an established schedule, there is no basis for the Association to object. Warrant officers had been working the 5/8 schedule before becoming a part of the UFS so there was no change when they were kept on that schedule. Tr. 452. CSO’s and clerical employees are nonsworn employees who have always been on a 5/8 schedule. Tr. 485.488 (Kraft). 13 In arriving at this conclusion, I have considered the testimony of George Novaky regarding alleged statements by former APDEA officer Earl Stembaugh. Those statements could conceivably be considered an admission against interest, but the testimony was hearsay in nature, and difficult for the Union to address because Stembaugh is out of the country and couldn’t be called in rebuttal by the Association. Arbitrators have the discretion to admit hearsay evidence, but we are also mindful of the reasons why such evidence may be of questionable reliability. I allowed the Municipality to present it, but conclude that Mr. Novaky’s testimony was too vague regarding the timing and circumstances of Stembaugh’s alleged remarks to merit any weight. Arbitrator’s Opinion and Award - 41 Negotiations for the 1990-1993 CBA On October 3, 1989, the parties commenced formal negotiations for another collective bargaining agreement. The Municipality’s bargaining team was composed of Chief Duane Udland, George Novaky and John Marton with William D. Bennett, an experienced labor lawyer as the Employer’s spokesman. The Association’s bargaining team consisted of various bargaining unit members with Bill Gibbons as the initial spokesman. The negotiations began with the Employer seeking extensive changes to the entire predecessor contract. MOA proposed a sweeping expansion of the contractual management rights clause, the inclusion of a zipper clause and numerous other contractual changes that would have granted the Municipality the right to make mid-term changes without bargaining with the Union. Ex. A-35. In a report he submitted to the Anchorage Assembly, Bennett described the Employer’s ultimate goal: “The Anchorage Police Department has set as a priority of these negotiations the recapture of management prerogatives lost in prior contracts.” Ex. A-24, p.12. Among the areas of concern, Bennett advised the Assembly that “under the current contract, starting times and shift schedules cannot be altered.” Id., p.13. I agree with the Association that this assertion undermines the Employer’s contention that when first adopted in 1974 (and as maintained in subsequent labor contracts), Article 7.1 was understood to allow unilateral changes between the specified workweeks. After Bennett’s report to the Assembly, a tentative agreement was reached between the parties’ bargaining teams, but that agreement was repudiated by Mayor Fink. The parties headed to factfinding with William Bennett representing the Municipality and Arbitrator’s Opinion and Award - 42 Attorney Will Aitchison, representing the Association. The factfinding involved hundreds of issues, including changes that both sides proposed making to Article 7.1. The Association proposed changing Article 7.1 to read: Workweek. The workweek shall consist of either five (5) consecutive days of eight (8) hours per day or four (4) consecutive days of ten (10) hours per day. Uniform field Services employees shall be on the 4/10 schedule. Nothing herein shall prevent the parties from agreeing to alternative shifts. Absent such agreement, work shifts shall not be changed until the parties have negotiated over such changes. Ex. M-75, p.209. The Municipality proposed retention of the existing Article 7.1 language with one insertion to indicate that the workweek provision would apply to just regular employees. The Association’s proposal sought what the APDEA now contends that Article 7.1 already provided. In the Employer’s view, the 1990 proposal shows the Union understood the existing language of Article 7.1 did not implicitly maintain any bargaining requirement if workweeks were subsequently changed. It is certainly true that the proposal makes explicit what the APDEA contends was implicit. I find it neither surprising nor inconsistent for the Association to have done this. There had, after all been two disputes (in 1986 and 1989) over unilateral changes while the 1985-1989 CBA was in effect. Given that fact, it is entirely credible for the Union to seek express clarification in the next contract in order to avoid subsequent disputes. The Association recognized that the contract language was ambiguous. It is not an admission against interest to seek to clarify and expand language that one concedes at the outset is not clear on its face. Arbitrator’s Opinion and Award - 43 The more significant question is whether the Association’s withdrawal of its proposal should be construed as evidence of an agreed change to the way in which Article 7.1 would be applied in the future. The Municipality contends that its brief to the factfinder specifically asserted that the Association had already bargained away any right it would otherwise have to object to a change in workweeks so long as the change was made to either a 4/10 or 5/8 schedule. Since the factfinder said the Municipality had stated the better case, and the Union subsequently dropped its proposal, the Municipality contends the Association must be viewed as having waived its right to bargain over workweek changes like the one at issue. I cannot credit assertions about the Employer’s factflnding brief because that brief was not admitted into evidence. At the arbitration hearing, the MOA factfinding brief was marked by the Association for possible use as Association Ex. 11. The Association did not use the exhibit, however, so it was never admitted. Only after the hearing, did the Employer decide it would like to rely on statements made in that document. Contemporaneous with the filing of its posthearing brief in this arbitration, the Municipality made a motion for admission of Association Ex. 11. The Municipality contends it erroneously thought Association Ex. 11 had been admitted at the hearing. Since both the Association’s 1990 factfinding brief and the factfinder’s decision were admitted into evidence, the Employer contends it makes sense to complete the record with the Municipality’s brief to the factfinder, and it contends that no substantial prejudice results from such admission. The Association takes issue with Arbitrator’s Opinion and Award - 44 that assertion, contending it marked the brief for possible use in anticipation that Mr. Bennett would be called as a witness on behalf of the Municipality. The Union objects to the Municipality seeking to make use of the brief with no opportunity now for the Union to cross-examine Bennett. The APDEA contends that would be prejudicial and inappropriate. I agree. Shortly before the hearing ended, this Arbitrator made a point of reviewing all the marked exhibits and indicating which ones had been admitted and which had not. At that time, the Municipality was specifically advised that Association Ex. 11 was not admitted. Tr. 454:7.14 The Employer now wants to be allowed the benefit of making use of its brief to the factfinder without subjecting the writer of that brief, and its advocate in those proceedings, to cross-examination. I find the Association’s objection well taken and deny the motion to admit Association Exhibit 11. Any reference to or reliance on that exhibit in the Municipality’s brief to this Arbitrator can be given no weight. The Employer contends the Association accepted the factfinder’s recommendation, which included the judgment that adoption of the Association’s proposed language “would represent an unnecessary intrusion on the ability of management to respond to changing financial restraints and staffing needs . . . . In the future this Department will ___________________________ 14 At the conclusion of the hearing, the Arbitrator did not keep copies of any exhibits that had not been admitted. Arbitrator’s Opinion and Award - 45 require greater flexibility, not less, to meet the demands for police services in Anchorage.” Ex. M-75, p.211-212. The first problem with this argument is the fact that the factfinder’s recommendation was not binding on the Union. It was an advisory opinion that led to continuing negotiations. The second problem is Mr. Aitchison’s unrebutted testimony that the Association did ultimately agree to withdraw its proposal but did not agree to the factfinder’s rationale. Tr. 238. According to Aitchison, the Union was willing to drop its proposed change to Article 7.1 because the Municipality had agreed to replace Article 5.2(k) in the 1985-1989 CBA with Article 5.2(N) which read as follows: If the Department implements a change in a current policy or procedure over which the Employer has a mandatory obligation to bargain, the designated Association Representative may grieve such change, in writing, to the Chief or his designee. Such grievance must be filed within three (3) working days of receipt of the proposed policy change. To the extent possible, absent emergencies, notice of a policy or procedural change shall be issued one (1) week in advance of the anticipated effective date. Ex. M-8, p.8 (emphasis added). Tr. 193. Aitchison testified that agreement to Article 5.2(N) was reached in a private meeting between Bennett and Aitchison and represented a compromise between a retention of benefits provision that the Association had been seeking and a complete zipper clause that the Municipality wanted. Tr. 189-190. Aitchison contends that Article 5.2(N) was drafted by Bennett and understood to mean the MOA would bargain midterm changes to mandatory subjects of bargaining with any disputes being resolved through the expedited grievance process. Tr. 189-190. Arbitrator’s Opinion and Award - 46 The conclusions one draws from the rejection or withdrawal of a proposal during bargaining will depend upon the surrounding circumstances. It does not automatically follow that the right or remedy sought to be clarified does not otherwise inhere in the contract. Sometimes. . . language is proposed in order to remove any doubts about the clarity of the clause, but if the language is objected to and is withdrawn to facilitate agreement, it does not automatically follow that the party withdrawing the proposal embraces the opposite interpretation. He may in fact withdraw the language . . . in the expectation that the words finally agreed on will be interpreted in the light of their inherent meaning after due consideration is given to all factors and not alone to the fact of abandonment of the clarifying language. B. Landis, Value Judgments in Arbitration: A Case Study of Saul Wallen, 63-64 (1977)(emphasis added). See also, New York Herald Tribune, 36 LA 753, 759 (Cole, 1960). The Municipality argues that since the Association’s proposal was withdrawn, the Arbitrator should not construe the contract as if the rejected provision had been accepted. I note that the Employer made no such argument in connection with the 1980 negotiations where the MOA made an unsuccessful proposal that would have made explicit what the Employer now seeks through contract interpretation. Through Article 5.2(N), the Association believed it had achieved contract language that explicitly recognized the fact that the Employer has a continuing duty to bargain. The Union thus felt more comfortable about Article 7.1’s silence regarding midterm changes to the workweek, especially since the factfinder had rejected the Employer’s proposed management rights and zipper clauses. Aitchison contends that in Arbitrator’s Opinion and Award - 47 his discussions with Bennett, the MOA negotiator never suggested or intimated that agreement to maintain Article 7.1 as it had been would thereafter be claimed a waiver of the Employer’s continuing duty to bargain over workweek changes. Tr. 219. If Bennett had done so, Aitchison testified that the Association would have taken the issue on to interest arbitration. Tr. 217. I find that assertion credible. I also find it significant that the Employer did not produce its own spokesman for the 1990 negotiations to testify in support of the inference the Municipality would now have this Arbitrator draw. Mr. Bennett was not called to testify, and the Municipality made no claim that Bennett was unavailable. I find no reason to disbelieve Aitchison’s description of the understandings reached, especially since testimony by another witness lent support to Aitchison’s testimony. John Marton was a member of the MOA bargaining team and participated in the factfinding process. In his deposition, Marton testified that he did not view the factfinder’s recommendation as effecting a waiver of the Association’s right to bargain over a change from the 4/10 schedule. Deposition Tr. 27:14-20. Chief Udland recalls Marton expressing a different view while still working for the City. Tr. 434-435. I am mindful of the Chiefs testimony, but that still doesn’t effectively rebut Aitchison’s testimony. I conclude that by agreeing to maintain the pre-existing language of Article 7.1, the Association did not waive its right to bargain over workweek changes like the one at issue herein. The 1990-1993 collective bargaining agreement was extended through December 31, 1994. It is the terms of this 1990-1994 labor contract that control the resolution of the Arbitrator’s Opinion and Award - 48 grievance I am asked to resolve. The parties have subsequently negotiated another CBA but Mr. Aitchison testified without rebuttal that the Union and MOA representatives agreed to let this arbitration resolve the issue of changes to the 4/10 workweek. Tr. 223- 224. As described herein, I find the bargaining history of Article 7.1 and other related provisions supports the Association’s position in this case. This case is not similar to the University of Alaska v. University of Alaska Classified Employees Ass’n, 952 P.2d 1182 (Alaska 1998), where the Alaska Supreme Court found the union had waived its right to bargain a restrictive smoking policy adopted by the University. The contract there had a zipper clause and more specific management rights clause, and union negotiators had agreed that bargaining unit members would follow University established policies. In the case before me, there is not the same indication in the relevant bargaining history that the Union intended to relinquish its bargaining right. It is that bargaining history which controls the outcome of this case. Conclusion: The purpose of contract interpretation is to give ambiguous language the meaning it appears to have had when the language was adopted, not some meaning that can be later read into the language but was not contemplated at the time of negotiations. One can easily understand how members of the current police administration would decide the Municipality has the unilateral discretion that is now claimed. Article 7.1 is nevertheless ambiguous in that regard. An examination of Article 7.1’s bargaining history is persuasive that when initially adopted, Article 7.1 was not intended to preclude midterm bargaining if, after once establishing the 4/10 workweek Arbitrator’s Opinion and Award - 49 for patrol, the Municipality then decided to move patrol officers onto the 5/8 schedule. The Employer did not persuasively demonstrate that in subsequent years, the original understanding regarding Article 7.1 was mutually changed. Under either a waiver analysis (which the Union sought to have applied) or the “covered by” analysis (which the Employer sought and has been applied by the Arbitrator), the bargaining history of Article 7.1 supports the conclusion that as originally adopted (and continued in subsequent contracts), Article 7.1 was not intended to eliminate a continuing duty to bargain if the Employer proposed to switch patrol officers from their established 4/10 workweek. I find the grievance should be sustained, and pursuant to the parties’ agreement at the hearing, I will reserve jurisdiction to determine an appropriate remedy for this violation if the parties cannot agree upon one themselves. AWARD After careful consideration of all oral and written arguments and evidence, and for the reasons set forth in the foregoing Opinion, it is awarded that: 1. The Municipality of Anchorage did violate the Collective Bargaining Agreement by unilaterally changing the workweek of patrol officers from four consecutive days of ten hours per day to five consecutive days of eight hours per day without first bargaining with the Anchorage Police Department Employees Association. 2. In accord with Article 5.2(L) of the contract, the Arbitrator’s fees and expenses for this liability determination will be billed to the Municipality as the losing party. Arbitrator’s Opinion and Award - 50 3. In accord with the parties’ express agreement at the hearing, the Arbitrator reserves jurisdiction to resolve any disputes regarding this Opinion and Award, including the issue of an appropriate remedy. Dated this 1st day of August, 1998 by Original signed by: Janet L. Gaunt Arbitrator’s Opinion and Award - 51