IN THE MATTER OF THE ARBITRATION BETWEEN ________________________________________________ ANCHORAGE POLICE DEPARTMENT ) EMPLOYEES ASSOCIATION ) ) and ) REMEDY ) DECISION MUNICIPALITY OF ANCHORAGE ) ) Grievance No. 94-4 ) AAA Case No. 75-L390-00142-97 ) ________________________________________________ ) ________________ Janet L. Gaunt Arbitrator ________________ October 2, 1999 For the Municipality: For the Association: Ray R. Brown, Esq. Michael T. Reynvaan, Esq. Dillon & Findly, P.C. Jeffrey A. Hollingsworth, Esq. 510 L Street, Suite 603 PERKINS COIE Anchorage. AK 99501 1201 Third Avenue, 40th Floor Seattle, Washington 98101-3099 TABLE OF CONTENTS PROCEEDINGS 1 RELEVANT FACTS 2 RELEVANT CONTRACT LANGUAGE 8 CONTENTIONS OF THE PARTIES 9 OPINION 9 I. COMPENSATORY DAMAGES ARE APPROPRIATE IN UNILATERAL CHANGE CASES WHERE EMPLOYEES SUFFER ADVERSE EFFECTS 10 II. FAILURE TO SEEK A TEMPORARY RESTRAINING ORDER DOES NOT PRECLUDE A MONETARY AWARD 13 III. THE APDEA GAVE SUFFICIENT NOTICE THAT IT WOULD BE SEEKING MONETARY DAMAGES IF THE 4/10 CHANGE WERE IMPLEMENTED 17 A. The APDEA Gave Oral Notice That the Municipality Risked Liability for Monetary Damages 19 B. MOA Labor Relations Representatives Knew That Monetary Damages Would Be an Issue in this Case 29 C. The Municipality Was Not Misled by The APDEA's Court Pleadings or Demand Letter to The American Arbitration Association 33 IV. CERTAIN OFFICERS INCURRED LOSSES FOR WHICH MONETARY DAMAGES ARE APPROPRIATE 36 A. Monetary Damages Are Appropriate For Work Performed on What Would Have Been a Scheduled Day off under The 4/10 Schedule 36 B. An Award For Overtime Opportunities That Were "potentially" Lost Is Not Appropriate 41 C. Monetary Relief Is Not Appropriate for inconvenience Caused by the Schedule Change 43 V. AN ADJUSTMENT TO THE APPLICABLE PERIOD OF BACKPAY IS APPROPRIATE 44 A. Rejection of the MOA's Offer to Proceed to Non-expedited Arbitration Is Not a Basis for Reducing the Monetary Award 45 B. Backpay Liability Should Not Accrue During the Period When Arbitration of the APDEA Grievance Was Not Pursued 51 VI. DAMAGES ARE AWARDED TO OFFICERS HIRED BOTH BEFORE AND AFTER THE SCHEDULE CHANGE 52 AWARD 54 Witnesses 1. Will Aitchison, Counsel and Chief Negotiator, APDEA 2. John Marton, former MOA Labor Relations Specialist 3. Robert Heun, President, APDEA 4. Wilfred D. Bennett. former Chief Negotiator for the Municipality of Anchorage 5. Duane Udland, Chief of Police, Municipality of Anchorage 6. Laren J. Zager, Captain. Municipality of Anchorage 7. Ronald Maus, Vice-President, Tucker Allen Inc. Exhibits Association 1. Letter from Heun to Tierney (7/20/94) 2. Letter from Tierney to Heun re possible change from 4/10 to 5/8 (7/27/94) 3. [not used] 4. Expedited grievance 94-4 (8/1/94) 5. Letter from Marton to Cargill re grievance 94-4 (8/2/94) 6. Letter from Aitchison to Court Clerk re filing of lawsuit (8/5/94) 7. Memo from Zager to Heun re CIRT Meal Hour grievance (8/10/94) 8. Letter from Marton to Heun re grievance 94-7 arbitrability (8/16/94) 9. Letter from Partnow to Aitchison re status of matter (8/19/94) 10. Letter from Heun to Tierney re shift configuration proposal (8/23/94) 11. 3/12/ Hour Patrol Shift Configuration Proposal 12. [not used] 13. Letter from Heun to Mayor Mystrom re shift change (2/14/96) 14. Letter from Aitchison to Bennett re depositions for the Main 4/10 lawsuit (3/20/96) 15. Letter from Aitchison to Bennett re depositions (4/23/96) 16. Letter from Airchison to Bennett re no response to RFPs (9/18/96) 17. Letter from Aitchison to Court Clerk re Motion to Compel (10/21/96) 18. [not used] 19. Letter from Aitchison to Bennett accepting MOA's offer to arbitrate (2/11/97) 20. Letter from Aitchison to Bennett and Erwin attaching a draft agreement to resolve the lawsuits (3/31/97) 21. Letter from Aitchison to Bennett and Erwin re status of settlement (4114/97) 22. Letter from Hughes to Aitchison confirming MOA offer to arbitrate (4/18/97) 23. Letter from Aitehison to Hughes with a statement of issues (4/18/97) 24. Letter from Aitchison to Hughes re lack of response to 4/18/97 letter (4/21/97) 25. [not used] 26. Faxed letter from Erwin to Aitchison re agreement to arbitrate and issues (5/9/97) 27. Letter from Aitchison to Erwin restating issues to arbitrate (5/13/97) 28. Letter from Aitchison to AAA re arbitration of grievance 94-4 (6/18/97) 29. Letter from Aitchison to Heun re agreed terms of 4/10 grievance arbitration (6/18/97) 30. Letter from AAA to Aitchison and Bennett re request for arbitrators (6/23/97) Witness/Exhibit Lists 31. Se1ection list of arbitrators (undated) 32. Letter from Aitchison to AAA re selection of Kienast (7/14/97) 33. [not used] 34. Letter from Aitchison to Edmiston re dates for arbitration (10/7/97) 35. [not used] 36. Letter from Aitchison to Edmiston re dates and arbitrator (11/12/97) 37. [not used] 38. Complaint, 3AN-94-7758 re change in traffic section transfer policy (Grievance 94-06) 39. Amended complaint in 3AN-94-7144 re main work schedule grievance (Grievance 94-04) 40. Complaint, 3AN-94-8029 re change to CIRT work day (Grievance 94-05) 41. Complaint 3AN-94-7689 re change to traffic section work day (Grievance 94-07) 42. Complaint 3AN-94-7144 re change from 4/10 to 5/8 workweek (Grievance 94-04) 43. Affidavit of Rob Heun, (4/8/96) 44-78 [not used) 79. Memo from Zager to Udland re analysis of patrol shift alternatives (7/18/94) 80. Memo from Zager to Udland re recommendations for shift changes (7/18/94) 81. Memo from lager to Udland re additional statistics (7/26/94) 82. [not used] 83. Analysis comparing 8 hour to 10 hour shifts (undated) 84. Memo from Udland to Vakalis re 5/8 highlights (7/28/94) 85. Letter from Tierney to Heun announcing the shift change effective 9/1/94) 86. Memo from Kinard to Palco re Overtime Budget Issues for 1995 (8/9/94) 87. Memo from Udland and Zager to File re discussion of harm should APDEA's TRO Prevail (8/26/94) 88. News article: "A 5-Day week for cops" (7(29/94) 89. [not used] 90. Municipal Audit Committee Meeting (8/27/96) 91. Memo from Zager to Heun re Work Schedule Construction for Last Quarter 1994 (9/28/94) 92-96 [not used] 97. MOA's Opposition to Anticipated APDEA Motion for TRO (8/30/94) 98-99 [not used] 100. Arbitration Decision by Ken Mccaffree re IBEW work week (3/4/91) 101. [not used] 102. Draft Stipulation Regarding Arbitration of Grievance 94-4 (3/4/98) 103. Final Stipulation Regarding Arbitration of Grievance 94-4(3/12/98) 104. Letter from Brown to Daniel (8/6/98) 103. [not used) 106. Executive Board Meeting Agenda and Minutes (11/19/96) 107. Executive Board Meeting Minutes (2/3/97) 108. Letter from Aitchison to Mayor Mystrom, Tierney, Bennett and O'Leary re APDEA reopening negotiations for CBA (8/30/94) 109. Letter from Aitchison to Bennett re scheduling of negotiations (9/14/94) 110. Letter from Aitchison to Bennett re scheduling of negotiations (9/19/94) 111. Letter from Bennett to Aitchison re scheduling of negotiations (9/19194) 112. Letter from Aitchison to Marton and Bennett re dates for negotiations (9/29/94) 113. Letter from Aitchison to Bennett re negotiations schedules (10/10/94) 114. Letter from Aitchison to Bennett rcsponding to Bennett's 3/23/95 letter re negotiations/proposals (4/6/95) 115-16 [not used] Witness/Exhibit Lists 117. Letter from Koeniger to Aitchison re suggested changes to draft CBA (1/2/96) 118. Chronology of negotiations 119. Memo from Bennett to Aitchison re draft proposals (3/23/95) 120. Damages chart: Impact on APDEA members of change in work schedule 121. Damages chart: Other Damages Requested by APDEA 122. Damages chart: Damages Requested by APDEA for Work on 5th Day of Workweek 123. Affidavit of Laren Zager (8/30/94) 124. Affidavit of Laren Zager (l0/12/95) 125. APDEA's Proposals for the CRA (9/12/94) 126. Aitchison Laptop Chart 127. Letter from Aitchison to Liebowitz (5/29/96) Municipality 2-1 Backup documents for grievance 94-4 Lawsuit (Main workweek) 2-2 Backup documents for grievance 94-5 lawsuit 2-3 Backup documents for grievance 94-6 lawsuit 2-4 Backup documents for grievance 94-7 lawsuit 2-5 All grievances 9/94-2/99 2-6 Grievances 1992-1993 2-7 Grievance 92-1 (1/6/92) 2-8 Grievance 92-4(2/7/92) 2-9 Grievance 92-7 (2/11/92) 2-10 Grievance 92-18 (4/3/92) 2-11 Grievance 92-20 (4/7/92) 2-12 Grievance 93-17 (8/25/93) 2-13 Grievance 92-28 (8/17/92) 2-14 Grievance 93-7 (2/26/93) 2-15 Grievance 93-9 (3/30/93) 2-16 Grievance 93-22 (12/29/93) 2-17 Grievance 95-2 (1/17/95) 2-18 Grievance 95-9 (2/23/95) 2-19 Grievance 95-23 (8/11/95) 2-20 Grievance Timeline Graphic Chart 2-21 Aitchison Affidavit ( ) 2-22 Aitchison Supplement Affidavit (10/15/98) 2-23 Mayor's rejection of 10-12's (10/21/94) 2-24 Aitchison letter to AAA re remedy, 95-33, and attached grievance (2/2/96) 2-25 Aitchison letter to AAA re remedy, 96-03, and attached grievance (3/22/96) 2-26 Aitchison letter to AAA re remedy, 95-34, and attached grievance (5/7/96) 2-27 Aitchison letter to AAA re remedy, 95-40, and attached grievance (5/7/96) 2-28 Aitchison letter to AAA re remedy, 96-11, and attached grievance (11/15/96) 2-29 [not used) 2-30 Aitchison Letter to AAA re remedy, 97-17, and attached grievance (1/9/98) 2-31 Aitchison Letter to AAA re remedy, 97-26. and attached grievance (5/11/98) 2-32 Aitchison letter to AAA re remedy, 97-27, and attached grievance (5/11/98) 2-33 Aitchison letter to AAA re remedy, 98-03, and attached grievance (8/24/98) 2-34 Aitchison letter to AAA re remedy, 98-07, and attached grievance (11/9/98) Witness/Exhibit Lists 2-35 Aitchison letter to AAA re remedy, 98-09, and attached grievance (11/9/98) 2-36 Aitchison letter to AAA re remedy, 98-19, and attached grievance (2/5/99) 2-37 Aitchison letter to AAA re remedy, 98-23, and attached grievance (2/9/99) 2-38 Aitchison letter to AAA re remedy, 98-15, and attached grievance (1/8/99) 2-39 Udland memo to all patrol personnel re patrol overtime (8/4/94) 2-40 Udland memo to all patrol personnel re patrol overtime (11/30/94) 2-41 Overtime Slip for G. Daily (9/22/94) 2-42 Calendar 2-43 Shift Schedule (1994) 2-44 OVERTIME slip for G. Daily (6/7/95) 2-45 Heun Affidavit (6/21/98) 2-46 Payroll Data 2-47 Payroll data (green computer paper printout) 2-48 Payroll Data 2-49 Chart Workforce Comparison (9/1/94-12/31/94) 2-50 OVERTIME Report (9/93-8/94) 2-SI Maus Spreadsheet (1993-96) 2-52 Total Regular Hours vs. Total Overtime Hours, FYE 1994-1998 2-53 Total Regular Dollars vs. Total Overtime Dollars, FYE 1994-1998 2-54 Total Hours vs. Total Overtime hours, FYE 1994-1998 2-55 Maus Analysis of Overtime Pay 2-56 Mans Comparison - Effect of return to 4-l0S 2-57 Overtime Hours as a % of Regular Hours (9/05/93 to 12/20/98) Witness/Exhibit Lists PROCEEDINGS On August 1,1998, this Arbitrator ruled that the Municipality of Anchorage ("Municipal- ity," or "MOA") had violated the terms of a collective bargaining agreement with the Anchorage Police Department Employees Association ("APDEA" or "Association") when the MOA changed the workweek of its uniformed field Services from a 4/10 to 5/8 schedule without prior bargaining. Pursuant to the parties' submission agreement, the Arbitrator reserved jurisdiction regarding an appropriate remedy for the unilateral change and returned the matter to the parties for them to attempt to reach agreement. The parties subsequently announced that they had failed to reach agreement, so in August 1998, the Arbitrator directed the Municipality to return patrol officers to the 4/10 workweek no later than September 1, 1998. There remained an issue as to whether the Arbitrator lacked authority to award monetary damages that were also being sought by the Association. In order to determine whether an evidentiary hearing would be necessary to resolve that dispute, a schedule for the submission of briefs was set. After reviewing the parties' extensive legal arguments, the Arbitrator ruled on November 20, 1998 that the authority to award monetary damages did exist but that there were factual issues that required an evidentiary hearing before I could decide whether, and to what extent damages should be awarded. The parties presented evidence regarding an appropriate remedy during a hearing held in Anchorage, Alaska on March 13-17, 1999. At those proceedings, the APDEA continued to be represented by Mr. Ray C. Brown of Dillon & Findley. The Municipality was represented by Michael T. Reynvaan and Jeffrey A. Hollingsworth of the Perkins Coie law firm. The hearing Arbitrator's Opinion and Award - 1 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 remedy hearing was closed on July 5, 1999 after receipt of the final reply brief. This decision now resolves the question of how the MOA's improper unilateral change is appropriately remedied. RELEVANT FACTS Historically, MOA traffic and patrol officers have worked a 4/10 schedule. In the summer of 1994, after new mayor Rick Mystrom took office, the Anchorage Police Department studied the cost effectiveness of the 4/10 schedule. During the week of July 18, I994, APDEA President Rob Heun learned that Captain Laren Zager had prepared a report concluding that a change from 4/10 to 5/8 shift would increase patrol staffing and result in decreased overtime costs for the Municipality. Heun immediately initiated discussions with Zager, attempting to persuade him that patrol shifts could not be unilaterally changed. When Zager argued for the supposed benefits of moving to a 5/8 schedule, Heun contends he countered by asking Zager bow supposed cost savings would compare to the MOA's potential liability for taking away a normal day off. Tr. 297-298.1 Zager told Heun the study was complete and the decision would be made by the Mayor's office, not the APD. Ex. M2-45. ____________________ 1Exhibits are referred to as either APDEA ("Ex. A-__") or MOA ("Ex. M2-__"). The transcript is referenced by page and sometimes line number ("Tr. __:__"). Unless otherwise noted, references to the transcript and/or exhibits refer to the transcript and exhibits entered into evidence at the hearing held on March 15-17, 1999. 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 On July 27, 1994, the MOA gave the APDEA formal notice that it intended to change patrol officers to a 5/8 shift effective September 1, 1994. Two days later, the Mayor called a press conference to publicly announce the schedule change. Ex. A-97 at 3. A grievance challenging that decision (Grievance 94-4) was filed by the APDEA on August 1, 1994. The grievance alleged a violation of Article V.2.N and sought to invoke an expedited arbitration procedure that was part of Article V.2.N. The Association contended the MOA had an obligation to bargain over any change to the patrol officer work schedules, and sought the following remedy: "That the Municipality not implement any change in patrol and traffic work schedules until it has discharged its obligation to collectively bargain with the Association." Ex. A-4. On August 2, 1994, Labor Relations Specialist John Marton responded to the grievance on behalf of the Municipality. Marton indicated that the MOA was not willing to arbitrate the dispute under the expedited grievance-arbitration procedure of Article V, Section 2.N of the labor contract. Marton's letter included the following assertions: The issue raised in this expedited grievance is neither procedurally nor substan- tively grievable under Article V. Section 2N. . . .While the Municipality recognizes that APDEA may allege that a dispute arises under Article V, Section 2, Paragraph A of the current agreement concerning this matter, the issue raised is not one that is subject to the expedited grievance procedure of Article V, Section 2, Paragraph N. The Municipality contends that it has the right as negotiated under the contract's Article II, Section 1 to change from a 4/10 schedule to a 518 schedule. Accordingly, the issue raised by APDEA is, at best, a breach of contract. Such disputes are not within the scope of the expedited grievance-arbitration procedure of Article V, Section 2,N. . . . I must deny this grievance in total, and refuse to arbitrate this issue under the provisions of Article V, Section 2N of the contract. Ex. A-52 ___________________ 2 Marton's mention of Article V, Section 2.A of the CBA was a reference to the general grievance/arbitration procedure which applied to most contractual disputes. Arbitrator's Opinion and Award - 3 On August 8, 1994, the APDEA responded to the Municipality's refusal to arbitrate by filing a complaint in Alaska Superior Court seeking an order compelling the MOA to proceed to arbitration on the "work schedule" grievance. The Association also sought an award of costs, interest, attorneys fees, and such other equitable relief as deemed just by the court. The Association's complaint did not request money damages and made no mention of any intent to seek money damages in any subsequent grievance arbitration. The APDEA also did not seek interlocutory relief to bar the MOA from implementing the planned shift change on September 1, 1994. Ex. M2-1 (Case No. 3AN-94-7144).3 On August 10. 1994, APDEA counsel Will Aitchison spoke with attorney Peter Partnow, who was temporarily representing the Municipality during the absence of the MOA's lead counsel, Bill Bennett. Aitchison raised the possibility that the APDEA would seek a temporary restraining order, and he said Partnow discussed whether the MOA would agree to approach the Court to establish a briefing schedule and a time for a preliminary hearing before September1, 1994. In a subsequent letter dated August 19, 1994, Partnow noted that the MOA had not received any papers seeking an injunction, and expressed surprise that Aitchison seemed to believe the MOA was refusing to arbitrate the work schedule dispute. Partnow indicated the MOA was willing to process a grievance under Article V.2.A but was refusing to use the expedited procedure of Section V.2.N of the labor agreement. Ex. A-9. ____________________ 3Three additional Lawsuits were subsequently filed by the APDEA when the MOA refused to arbitrate grievances challenging unilateral changes to the work day for CIRT officers (Ex. M2-2), the traffic section work day (Ex. M2-4). Arbitrator's Opinion and Award - 4 Because Aitchison found Partnow's letter ambiguous as to whether the MOA was willing to allow the Association to raise its substantive claims under Article V.2.N in a non-expedited arbitration hearing, he called Partnow to clarify the MOA's position. Aitchison understood Partnow to say that the MOA was not willing to allow Article V.2.N to be referenced in any arbitration. Tr. 45-47 (Aitchison). Aitchison's subsequent dealings were with Bill Bennett. Bennett had heard that the APDEA would be seeking a temporary restraining order (TRO), so he filed an anticipatory brief opposing the issuance of a TRO. Bennett argued that injunctive relief should be denied because the MOA was willing to process a grievance to arbitration under Article V. Section 2.A, and the Association would not suffer irreparable harm because an arbitrator could make whole most losses if the APDEA prevailed in arbitration. Ex. A-97. After receipt of Bennett's brief, the Association chose not to seek a TRO, and the shift change was implemented on September 1. 1994. One month later, the parties began negotiations for a new collective bargaining agreement. During the negotiations, the parties agreed to withdraw proposals regarding shift schedules and to let the dispute over the change from 4/l0s to 5/8s be resolved through the pending litigation and potential arbitration. The APDEA took no action on its pending lawsuit to compel arbitration until late summer 1995. Ex M2-22, 20 (Aitchison affidavit). Then in September 1995, the Association filed a motion for summary judgment, and one month later, the MOA filed a cross motion for summary judgment. Id. 22 23. On November 15. 1995, while both motions were pending, the court dismissed the case without prejudice because it had remained on the Inactive Calendar for sixty days without a motion to act for trial. Ex. M2-I at 91. The APDEA filed a new lawsuit with the same claim on December 22, 1995 (Case No. 3AN-95-10798C1), and the amended Arbitrator's Opinion and Award - 5 complaint sought a declaratory judgment that the MOA's refusal to process the "work schedule" grievance to arbitration was a breach of contract. Id. at 93-94. The amended complaint again made no mention of money damages. Throughout 1996, the Association sought to depose witnesses and to compel the production of relevant information. Bennett then called Aitchison in December 1996 and offered to proceed to arbitration if the Association would drop its various lawsuits, including the one about the change from 4/l0s to 5/8s. Bennett indicated that this offer would allow each side able to make whatever arguments it wanted in arbitration. Tr. 47 (Aitchison), 492 (Bennett). The MOA's offer was accepted by the Association's Executive Board in February 1997, and during a phone call with Airchison, Bennett indicated that he would draft a settlement agreement regarding the pending lawsuits. Bennett was in the process of resigning from his representation of the MOA, and despite repeated inquiries by Aitchison, neither Bennett nor anyone else for the Municipality prepared a settlement agreement. Aitchison finally drafted one himself and submitted it to the MOA on March 31,1997. Ex. A-20. Mary Hughes, the Municipal Attorney for Anchorage, faxed Aitchison a response on April 18, 1997. In her letter, Hughes made the MOA's willingness to arbitrate conditional upon agreement regarding the scope of issues to be presented and upon agreement that the arbitration would "not be governed by the provisions of Article V, Section 2.N." Ex. A-22 n.1. For Grievance 94-4, Hughes proposed the following issue statement: "Did the Municipality violate Article VII, Section 1 of the collective bargaining agreement by changing the work week and work day schedule for traffic and patrol officers of the Anchorage Police Department from 4/10s to 5/8's? Id. Arbitrator's Opinion and Award - 6 The day that Aitchison received Hughes' letter, he responded with a letter expressing the Association's view that Article V, Section 2.N should be added to the statement of the issue since that was a contract article specifically mentioned in the grievance. Ex. A-23. The wording of the issue was discussed further in a telephone conference call held on April 27, 1997. Aitchison, Hughes, Lynn Erwin (another attorney from the Municipal Attorney's Office), Heun and Tom Tierney all participated. Ultimately, the parties agreed to proceed to arbitration using a generic statement of the issue that was not confined toany particular contract clause. On June 18, 1997, Aitchison wrote to the American Arbitration Association seeking a list of arbitrators. In that letter, Aitchison described the dispute as follows: The Association alleges a violation of Article V, Section 2(N). The remedy sought by grievants is that the Municipality collectively bargain over the change in work schedule from a 4/10 schedule to a 5/8 schedule. Ex. A-28 (emphasis added in bold). It then took another nine (9) months for the parties to agree upon an arbitrator and finalize a submission agreement. In that submission agreement dated March 12, 1997, the parties stipulated that this Arbitrator should resolve the following issues: 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? Assuming a violation of the Collective Bargaining Agreement, what is the appropriate remedy? Ex. #103. A hearing on the merits of Grievance 94-4 began in March, 1998, and a decision resolving the merits of the grievance was issued on August 1, 1998. Arbitrator's Opinion and Award - 7 RELEVANT CONTRACT LANGUAGE ARTICLE V - BILL OF RIGHTS AND GRIEVANCE PROCEDURE Section 2. Grievance Procedure. A. A "grievance" is defined as any dispute between the Employer and an employee or the Association regarding the interpretation or violation of this Agreement which has not been resolved by prior submission of the problem through the chain of command, arid which has been accepted as a grievance by the Executive Board of the Association. G. If the grievance cannot be resolved within the time frames above, the Employer or the Association may request arbitration. The request for arbitration must be made in writing within twenty (20) working days from the date of receipt of the Mayor's or the Mayor's designee's of Association's response given under Section 2, paragraphs E or F, above, as may be applicable. The written notice must specify the Article or Articles of this agreement allegedly in dispute. 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. 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. . . . . . . . Arbitrator's Opinion and Award - 8 P . . . . However, nothing in this Agreement shall be construed to mean that the Municipality has agreed to bargain, to submit to grievance or arbitration, or to include within the terms of this Agreement, any non-mandatory subject of bargaining or to waive any management right possessed by the Municipality. 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 have argued at great length and with great skill about the issue of an appropriate remedy for the MOA's unilateral change. Four sets of briefs have been exchanged with extensive citations both to the record and case precedent I have considered the parties' various arguments and the basis for them but will not try to address them all in this decision. If a particular argument is not mentioned or cited cases are not analyzed it is because they either became moot due to another finding or because, having considered that line of precedent, I did not find it persuasive. Citations that do appear are illustrative, not all-inclusive, of the authority that I believe supports a particular conclusion. OPINION It is by now well established that if no remedy is specified in a labor contract, then an arbitrator has inherent and broad authority to determine the remedy appropriate for a particular contract violation. See e.g., Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597 Arbitrator's Opinion and Award - 9 (1960): The Common Law Of The Workplace, §10.1 at 329 (BNA 1998). This Arbitrator's broad authority can hardly be disputed in the instant case, since the parties entered into a Stipulation Regarding Arbitration wherein they explicitly agreed that if the Arbitrator found a violation of the collective bargaining agreement, I should proceed to decide what is the appropriate remedy." Ex. A- 103. The parties' stipulation did not specify what kind of remedy would be appropriate for a unilateral work schedule change. It left that to this Arbitrator's discretion. Regarding such discretion, the United Stares Supreme Court has articulated dual themes that emphasize an arbitrator's wide latitude in formulating remedies to meet a wide variety of situations, while also holding that to be enforceable, an award must "draw its essence" from the collective bargaining agreement. Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. at 597. It is fundamental in the arbitration process that unless barred by the Contract from whose essence the Arbitrator draws his authority the Arbitrator may grant any remedy equitable as well as legal which he finds just and proper in the circum- stances of the case submitted to him. Pabst Brewing Co., 78 LA 772 (Wolff, I982)(emphasis added in bold). I. COMPENSATORY DAMAGES ARE APPROPRIATE IN UILATERAL CHANGE CASES WHERE EMPLOYEES SUFFER ADVERSE EFFECTS. The authority to formulate an award appropriate for a particular contract violation inherently includes the ability to award monetary damages. In fact, an award of compensatory damages is the most common type of remedy. See, e.g., United Paperworkers International Union v. Misco. Inc., 484 U.S. 29, 108 S.Ct. 364, 98 L.Ed.24 286 (1987); Wolff, "The Power of the Arbitrator to Make Monetary Awards," Proceedings of the l7th Annual Meeting of the National Arbitrator's Opinion and Award - 10 Academy of Arbitrators 176 (BNA 1964). It is certainly true that in unilateral change cases, back pay is not automatic or invariably awarded. The typical remedy will direct a return to the status quo until a bargaining obligation is satisfied. What else is appropriate depends upon a very fluid and fact specific inquiry. The MOA contends that "innocent employers" do not get stuck with back pay in cases where a change is based on an isolated, mistaken, but good faith belief. The first problem I have with that assertion is the suggestion that the Municipality should be considered an "innocent employer." After asserting during his campaign that he would rake a tough stance with labor organizations, Mayor Rick Mystrom took office on July 1, 1994. Ex. M2-45, 14 (Heun Affidavit). It hardly seems coincidental that within weeks thereafter, the MOA was planning not an isolated change but instead a variety of unilateral changes over which the Municipality made clear it had no intention of bargaining. After all the extensive testimony in this case, the Arbitrator was left with the impression that changing the 4/10 schedule was a calculated political decision which the MOA's labor relations staff then sought to justify. The Municipality gambled that its interpretation of Article 7.1 would overcome a twenty-two (22) year practice of 4/10 workweeks for its uniformed patrol. Having gambled for political reasons and lost, the Municipality is not entitled to any special treatment as a putative "innocent." I agree with the Municipality that rulings of the National Labor Relations Board (NLRB) are instructive. As a general rule, the NLRB uses backpay to make employees whole when they are damaged by a unilateral change that was a mandatory subject of bargaining. See, e.g., North Star Steel Co v N.L.R.B. 974 F.2d 68 (8th Cir. 1992); Park-Ohio Industries, 257 NLR.B 413 (1981), enforced 702 P.2d 624 (6th Cir. 1983); Norris & Shershin How To Take A Case Before Arbitrator's Opinion and Award - 11 The NLRB, 443 (6th ed. 1993). According to an authoritative federal court, such "make-whole" orders are in fact "typical." [B]reaches of the duty to bargain are typically remedied by make-whole orders. whereby the offending employer is required to pay his employees the wages or benefits that they would have received but for the unlawful unilateral action. N.L.R.B.v Caurborne, 691 F2d 1023, 1025 (D.C. Cir. l982)(emphasis added in bold). See also Spokane County Deputy Sheriff's Association, PECB Decision 5698, aff'd PECB Decision 5698-A (1996)("The conventional remedy for a "unilateral change" violation is to order the restoration of the status quo ante, together with back pay to make employees whole from the adverse effects of the unlawful action."). The MOA has cited NLRB and old Fifth and Sixth Circuit cases where no damages were awarded. All concerned relatively minor disputes over the altering or discontinuance of bonuses. Beacon Journal Publishing Co v. NLRB, 401 F.2d 366 (6th Cir. 1968), appeal following remand, 417 F.2d 1060 (6th Cir. 1969);4 General Telephone Co. v. NLRB, 337 F.2d 452 (5th Cir. 1964)(Christmas bonus of $10 at issue). The change instituted by the MOA was a much more significant one and as the 6th Circuit acknowledged in Beacon Journal, other circuits have ruled differently and awarded "make whole" remedies. 401 F2d at 368. There are a vast number of cases In which arbitrators award make-whole remedies even where there is no indication that the employer has any pattern or history of disregarding its collective bargaining obligations. See, e.g.Washington Teachers Union, Local 6, 108 LA 821 ____________________ 4The Beacon Journal case ultimately held that the imposition of a reimbursement remedy should not be automatic; that the NLRB needs to clearly articulate the reasons for its choice of a remedy. 417 F.24 at 1062-1062. Arbitrator's Opinion and Award - 12 (Bernhardt, 1997). If employees have suffered a significant economic impact from an improper unilateral change, then making them whole for that loss is entirely appropriate. I reject the MOA assertion that applicable precedent precludes a "make whole" remedy for the kind of unilateral change it made to the 4/10 workweek. II FAILURE TO SEEK A TEMPORARY RESTRAINING ORDER DOES NOT PRECLUDE A MONETARY AWARD. The MOA contends this Arbitrator's inherent authority to award monetary damages should not be exercised because the APDEA has waived its entitlement to seek monetary damages. The MOA argues, for example, that the APDEA's failure to seek a temporary restraining order to prevent implementation of the schedule change is fatal to its damages claim. I find that assertion unpersuasive for a number of reasons. In A.J. Industries Inc. v. Alaska Public Service Commission, 470 P2d 537, 541 (Alaska, 1970), modified in other respects, 483 P.2d 198 (Alaska 1971), the Alaska Supreme Court applied a "balance of the hardships" test to determine whether injunctive relief was appropriate. A "clear showing of probable success" on the merits is required where (1) the party seeking relief does not stand to suffer irreparable injury in the absence of relief or (2) the party against whom the injunction is sought will suffer injury if the injunction is issued. AJ. Industries, 470 P.2d at 540. A different rule applies when the party seeking an injunction would suffer irreparable harm and the opposing party can be protected from injury.5 In the latter instance, a clear showing of ____________________ 5 Irreparable injury includes an injury which cannot receive reasonable redress in a court of law. State v. Kluti Kaah, Native Village of Copper Center, 831 P.2d 1270, 1273 n5 (Alaska 1992) Arbitrator's Opinion and Award - 13 probable success on the merits is not required. Instead, the court considers whether the plaintiff is raising serious and substantial questions going to the merits of the case, and whether any harm will come to the public interest if injunctive relief is granted. Id.; State v. Kluti Kaah Native village of Cooper Center, 831 P.2d 1270, 1273 (Alaska 1992); Powell v City of Anchorage, 536 P.2d 1228, 1229 n.2 (Alaska 1975). The Municipality was claiming the right to change the 4/10 workweek because of Article 7.1 which states: "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." That language made it very difficult for the Association to make clear showing of probable success. The other alternative was to demonstrate irreparable harm if a TRO was not issued. It is highly unlikely a court would have viewed that requirement as having been met In the labor-management setting, it is very difficult for unions to demonstrate the kind of irreparable injury that persuades courts to enjoin alleged contract violations pending completion of a contractual grievance procedure. See. e.g. - Amalgamated Transit Union Local 134 v. Greyhound Lines, Inc., 550 F. 2d 1237 (9th Cir. 1977)(rejected union request for an injunction prohibiting employer from making changes in work schedules); Aluminum Workers International Union Local 215 v. Consolidated Aluminum Corp., 696 F.2d 437, 444 (6th Cir. 1982)(rejected request for injunction restraining employer from reorganizing in a way that would eliminate jobs); Locan Lodge No. 1266 v. Panoramic Corp., 668 P.2d 276 (7th Cir. 1981)(even if employees suffer some injuries that cannot be completely remedied by the arbitral process, irreparable injury will still not exist so long as the arbitrator has the authority to address the underlying contract violation in a meaningful fashion). Arbitrator's Opinion and Award - 14 The MOA contends that Alaska courts are very receptive to granting preliminary injunctions to halt labor contract violations. It is true that injunctions have occasionally been granted, but the special circumstances of the cited cases do not persuade this Arbitrator that the prospects for the APDEA obtaining a TRO were very good. Two of the MOA's cited cases involve the City of Fairbanks and the Fairbanks Fire Fighters Association (FPFA). In Fairbanks Fire Fighters Association, Local 1324 v. City, of Fairbanks, 934 P.2d 759 (Alaska 1997), the collective bargaining agreement had a provision requiring the parties to maintain the status quo pending resolution of a grievance. When the City made a change that reduced the minimum staffing level of each shift, the FFFA sought an injunction to compel the City to maintain sufficient staffing levels pending resolution of the grievance. The Superior court granted that request, and the Supreme Court did not address that part of the lower court's ruling. The existence of the "status quo" provision makes this case readily distinguishable from the situation the APDEA faced with the MOA. 934 P.2d at 760-761. An earlier case, Fairbanks Fire Fighters Association, Local 1324 v. City of Fairbanks, 623 P2d 339 (Alaska 1981) involved an injunction granted by a superior court to restrain the city from enforcing a newly enacted personnel ordinance. Unlike the situation between the MOA and APDEA, there was no dispute that the Fairbanks ordinance differed from a collective bargaining agreement that was then in effect. The reviewing court essentially ruled that the unilaterally adopted ordinance did not release the city from its obligations under the parties' collective bargaining agreement. I do not find this ruling indicative that the APDEA would likely have been granted a TRO in a case where whether the CBA permitted the unilateral change at issue was very much in dispute. Arbitrator's Opinion and Award - 15 The final case involved a TRO issued during a teacher's strike. Anchorage Educ. Assn. v. Anchorage School District, 648 P.2d 993 (Alaska 1982). Because the strike was found to be illegal, the Alaska Supreme Court ruled that no showing of irreparable harm was necessary for a temporary restraining order to be issued. The illegality of the strike was sufficient harm to justify injunctive relief. 648 P.2d at 998. There was no such illegality in the dispute between the APDEA and the MOA so the Anchorage School District case is readily distinguishable and does nor support the conclusion that the APDEA would likely have obtained a TRO enjoining the 4/10 schedule change. Because it believed the Association would be seeking a TRO, the Municipality served the Association with a brief that strongly challenged the propriety of any such request. The MOA claimed the law did not allow a TRO to be issued because APDEA's claim of irreparable harm was "particularly hollow." Ex. A-97 at 6-8. The Municipality went on to note: [G]ranting an improvident injunction will cause MOA irreparable harm because no subsequent award by an arbitrator can replace the lost efficiencies and opportunity to increase the number of officers on the streets effective September 1, 1997, that immediate implementation of the five/eights schedule will realize. Thus, while APDEA has available possible remedies in arbitration if the injunction is not granted, MOA and the public interest has no reasonable remedy if the injunction is granted. Ex. A-97 at 10. After arguing to a court that any claim of irreparable injury was "particularly hollow" and thus there was no basis for issuing a TRO, the Municipality now reverses course and contends the Association should be penalized for not pursuing one. I disagree. The APDEA'S legal counsel reasonably concluded that any request for a TRO would likely be unsuccessful and would expose the Association to the potential for sanctions, including attorneys fees. Tr. 215. The APDEA might have also been required to post a bond to indemnify Arbitrator's Opinion and Award - 16 the MOA from its lost overtime savings if the APDEA did not ultimately prevail on the merits of its grievance. Alaska Rules of Court 65(c): State v. United Cook Inlet Drift Ass'n, 815 P.2d 378 (Alaska 1991). While one can never be sure of the outcome, I conclude that the APDEA had good cause for its strategic decision, and I do not believe it is good arbitral policy to require the seeking of a TRO as a precondition to a "make whole" remedy.6 III THE APDEA GAVE SUFFICIENT NOTICE THAT IT WOULD BE SEEKING MONETARY DAMAGES IF THE 4/10 CHANGE WERE IMPLEMENTED. There is no dispute that in the grievance filed over the 4/10 change, the Association did not mention that it was seeking monetary damages. Ex. A-4. There are understandable reasons for that. The grievance was challenging a prospective change, not one that had already occurred so monetary losses bad not yet arisen. Thus, the Association simply sought to have the Municipality discharge its bargaining obligation before implementing the shift change. I agree with the MOA that the timing of the grievance did not preclude a reference to future damages. The Association could certainly have referenced the remedy it intended to seek if the change was implemented without bargaining. It is equally true, however, that nothing required the APDEA to specify a request for damages at a time when none had yet been accrued by any member of the bargaining unit. Formal pleadings are not required in labor arbitrations. Typically, the articulation of requested remedies in a grievance is quite general. For example, a union might seek "any remedy ____________________ 6 The Municipality has not cited, and this Arbitrator has not found evidence that labor arbitrators normally impose such a requirement. Arbitrator's Opinion and Award - 17 deemed appropriate," and leave the elements of that remedy to the Arbitrator's discretion. MOA cases cited for the proposition that grievances must request specific remedies are not applicable where, as here, the parties subsequently enter into a submission agreement that gives an arbitrator explicit authority to decide upon an appropriate remedy. When a particular remedy cannot be implied from the nature of a grievance, it is not always certain that an arbitrator will order a remedy that has not been discussed in lower steps of a grievance procedure or at the hearing. To avoid uncertainty, a grieving party is well advised to spell out the type of relief being sought, but when that is riot done, an arbitrator retains the discretion to decidc what is appropriate. See. e.g., Hill and Sinicropi, Remedies in Arbitration, 483-484 (2d ed. 1991). A party that is accruing potential liability for monetary damages is entitled to notice of that fact. When an employer appears to have been prejudiced by lack of notice regarding a particular remedy, it becomes more likely that a requested remedy will be denied. See. e.g., Wright Machinery Co. v. Local Lodge 721, Int'l Assoc Of Machinist, 49 LA 64, 66 (Daly 1967)(union did not mention overtime pay at any point during the grievance procedure); John Deere Co., 70 LA 997 (Grether, l978). If an employer is truly misled by a union into believing monetary damages will not be requested, I believe a damage award becomes inequitable and thus inappropriate. That is why the critical issue in this remedy phase of the proceedings is whether the Municipality was truly misled into believing that monetary damages would not be sought by the Association. Arbitrator's Opinion and Award - 18 A. The APDEA Gave Oral Notice That the Municipality Risked Liability for Monetary Damages. During the remedy hearing, the Municipality established that after the change was implemented and during all the years that the grievance was pending, the APDEA never gave written notice that it planned to seek monetary damages. That omission was certainly unfortunate. When a party fails to document notice in writing, it creates the opportunity for a dispute to arise as to whether notice was actually given. Here, for example, there is an issue as to whether the MOA was misled to its detriment. Notice of a potential remedy need not always be written, but it is certainly preferable to give clear notice in writing so chat claims to the contrary cannot later be made. Silence does not automatically equate to misleading conduct, however. Ultimately, one has to judge the significance of the omission in the context of the events surrounding it. It is not inequitable to award damages when oral notice of an intent to seek monetary damages is given to an employer, or when that intent is self-evident. APDFA President Rob Heun testified that there were numerous occasions when he verbally warned MOA representatives about the Municipality's potential liability for monetary damages. Heun concedes he probably did not use terms like "monetary damages," or "retroactive pay." The words Heun recalls using the most was "big bucks." Tr. 365. Heun is absolutely certain he pointed out that the Municipality risked losing dollars if the Association prevailed. Tr. 309. Heun does not recall the exact date of various conversations, but he described specific instances when the Municipality's potential liability was discussed with Captain Zager, and with two prominent members of the Anchorage City Council: Joe Murdy and Mark Begich Heun also Arbitrator's Opinion and Award - 19 believes he had discussions with other MOA representatives, but he cannot recall the details of those conversations. Tr. 375. Heun says he told Zager the Association would seek a monetary remedy even before the APDEA grievance was filed. Tr. 311. Q. Did you give any affirmative notice to representatives of the Municipality or the department that unless they changed the course of events; that is, reverse back 4/10s, that you would be seeking a monetary award? A. Well, yes.... He gave me kind of a heads-up that this was coming... And when he started talking about how they initially thought that there would be - it would save a few thousand dollars but, once they got into it, they realized it would be a few hundred thousand dollars, that I said, well, how does that contrast with what, you know, you guys might be liable for taking away everybody's day off here, having people work on their day off, which would be about 52 days off per year. Q. And what was his response? A. ... he told me that he's been told they are on firm ground, and they have the authority to make that change. Q. Did he seem to waver or did he dispute the fact that you would have a -you may have a financial claim if you prevail on the underlying grievance? A. Oh, he told me that the - that all the [avenues]7 that we wanted to seek were still - you know, would be open. But in terms of this particular change, that he felt that they could implement it. Tr. 296:25 - 298:16 (emphasis added in bold). On another occasion, Heun recalled Zager giving him 40 minutes to convince Zager that were a bad idea. ____________________ 7 The transcript shows Heun using the word "evidence" but the Association contends, and based upon my notes I agree, that Heun actually said "avenues." Arbitrator's Opinion and Award - 20 A. I told him he was breaking the contract - that they were breaking the contract. And I told him that there would be - you know, we were going to let this lie. When be mentioned how much money it was going to cost them, I said, you need to - you know, I said, well, how does that compare to what you guys might be paying out for paying back for this time off that these guys are missing in terms of the overtime that they would be missing. You know, they would have to work on their - their fifth day or their first day off. Tr. 367:12-22, Heun is also quite certain that he discussed the Municipality's potential liability with Mark Begich and Joe Murdy. Begich was chair of the Anchorage Assembly and Murdy served on the Assembly's Public Safety Committee, whose oversight included the APD. The Assembly approves the budget submitted by the Mayor so Heun felt the MOA's potential exposure for damages needed to be brought up with these individuals. Heun recalls talking with Begich and Murdy on various occasions when the budget was being worked on in 1995 and 1996. A. . . . probably about '95 or so when this thing had been initiated and we knew that we were on the way to a lawsuit. It was in lawsuit. And I -every time I saw Begich or Murdy, because they were very accessible to us, and I would - you know, it got to a point where Begich would say: I don't want to hear about 4/l0s, Rob. And I'd say: okay, Well, we're still there, you know. I don't know how this thing is going to shake out but it would turn into big bucks. Big bucks is a term that was easy to say and it was used repeatedly. Tr. 368:24-369:11. Q. And what precisely did you tell Mr Murdy? A. Basically the same thing. Murdy and Begich were together a lot of time, too. Joe Murdy was also the - he was on the public safety committee of the Assembly, and he was very active in public safety issues. And when I talked to him - when he would ask or be would wonder how things were going, I'd say that the 5/8s still had - you know, morale is still down. Arbitrator's Opinion and Award - 21 . . . And I just - I just remember telling him, you know, this doesn't have to be like this, and it's going to cost. Tr. 374:16-375:2. The MOA contends that Heun's testimony was too vague and indeterminate to find that actual notice was given. Heun certainly concedes that be cannot specify exact times and dates when the conversations would have occurred. I found Heun quite credible, however, in his insistence that warnings were repeatedly given. Q. As we sit here today, do you have any spccific recollection of telling Assemblyman Murdy that the Association was seeking any form of monetary damages in the grievance? And again, by monetary damage, I mean overtime, retro pay, bay [sic] pay, compensatory damages, whatever. A. In terms of a specific meeting, no. In terms of being sure that I talked to him about it, yes, constantly. Tr. 375:3-11. The Municipality contends Heun's testimony is belied by paragraph 8 of an affidavit he filed in the arbitration proceedings. The assertion the MOA relies upon reads as follows: "In my conversations in the months of August and September, 1994 with Mr. Tierney, Captain Zager, and then-Deputy Chief Udland, I stared on several occasions that the Municipality's actions violated the contract, and urged the Municipality to reconsider its decision. I warned the Municipality that APDEA members could be entitled to a substantial sum of money if the APDEA prevailed in the grievance." Ex. M2-4S (emphasis added in bold). The MOA would have Heun's last sentence read as if it was asserting that the warning about monetary damages had been made to all the individuals mentioned in the preceding sentence. That is one way it could be read, but the sentence is ambiguous in that regard. It is just as reasonably read as describing a warning that was given to one or more of the Arbitrator's Opinion and Award - 22 previously mentioned individuals. Read in the latter fashion, the affidavit is entirely consistent with Heun's testimony at the arbitration hearing. Heun does not contend that he ever personally discussed monetary damages with Tierney. However, Heun did assert that he understood Tierney was aware of the potential for monetary damages because Murdy said he had talked with Tierney about the fact that there could be costs assessed for the loss of days off each year. Tr. 301. Q. . . . did Mr. Murdy share with you any of his conversations with Mr. Tierney regarding Mr. Tierney's knowledge of the potential exposure to the Municipality? A. Not in detail, other than the fact he told me he talked to Mr. Tierney about it; Tr. 424:13-18. That assertion was not denied by either Murdy or Tierney, neither of whom was called to testify. The Municipality also failed to call Mark Begich to refute testimony by both Heun and Will Aitchison, that the potential for monetary damages was specifically discussed with that assemblyman. The Municipality contends the only evidence of actual notice is Heun's testimony. Heun's testimony is certainly the most detailed, but the APDEA's Legal counsel, Will Aitchison, also expressed the belief that there had been occasions when he pointed out the fact that the City was risking liability for monetary damages. Q. Have you ever, orally or in writing, stated to a representative of the Municipality that APDEA was seeking monetary damages? A. This is a tough one for me, Mike, because, you know, I have refrained from testifying to this because I couldn't put names and places on it, but I feel convinced that on many occasions I told representatives of the Municipality, including the chief, and including Laren Zager, including John Marton, that I told people like that this is going to cost money but I can never -- I cannot in my mind firmly say I Arbitrator's Opinion and Award -23 actually said this to Chief Udland, I have this belief, but it is not a vivid enough memory for me to say, yes, in fact, I'm certain I did say that. . . .1 feel like I did, but I can't pin it down. Tr. 172:12-173:6. Aitchison did recall a specific occasion when he heard Mark Begich acknowledge he knew the APDEA grievance was about money damages. A. ... I have heard Mark Begich say to Rob Heun that this case- he knows this case is about money damages when he was talking about budgeting. So I know the chair of the assembly, the legislative arm of the Municipality, knew this case was about money damages. Tr. 176:11-18 (emphasis added in bold). Arbitrators have long applied the rule that an adverse inference may arise from a party's failure to call a potential witness. Hill & Sinicropi, Evidence in Arbitration, 102 (2d ed 1987). When a party fails to call a person who possesses knowledge about the facts at issue and who is reasonably available to him and not equally available, in a physical or practical sense, to the other party, and when the potential testimony would have been superior to that relied upon at trial, an inference may be drawn that the testimony of the missing witnesses would be unfavorable to the party that failed to produce the witness. Jones v. Otis Elevator Co., 861 F.2d 655, 659 (11th Cir. 1988).8 [The rule] is more a product of common sense than of the common law. Simply stated, the rule provides that when a party has relevant evidence within his control which he fails to produce, that failure gives rise to an inference that the evidence is unfavorable to him. International Union, UAWL v. N.L.R.B, 459 F.2d 1329.(D.C. Cir. 1972). Whether to draw the inference is a matter of discretion for the fact finder. Id. No adverse inference should be drawn ____________________________ 8 A witness is unavailable in a practical sense when his/her relationship to the nonproducing party is such that it creates bias or hostility against the opposing party. Arbitrator's Opinion and Award - 24 from the failure to call a witness whose testimony would only be cumulative of other evidence. Cromling v Pittsburg and Lake Erie R.R. Co., 327 F.2d 142, 149 (3d Cir. 1963). In the instant case, the Municipality did not call Tierney, Begich or Murdy to testify even though all those individuals were alleged to have received oral notice of the Association's intent to seek damages. The Municipality seems to have read Heun's affidavit of June 21, 1998, as indicating that he perona1ly discussed monetary damages with Tierney, so it seems surprising that the MOA did not offer Tierney's testimony at the hearing. The Municipality did not offer any evidence Tierney was unavailable or unwilling to testify, and did not seek to have his testimony taken by phone if he was occupied elsewhere.. The Municipality contends Murdy or Begich were not called because Heun had never previously mentioned conversations with these individuals. That justification was not persuasive. On the first day of the remedy hearing, Aitchison testified regarding Begich's admission that he knew the APDEA's case involved money damages. Tr. 176. Heun's testimony about warnings given to Murdy and Begich was offered early on the second day of the arbitration. Tr. 299-300. When failing to call either Murdy or Begich, the MOA made no claim of surprise, no request for a continuance, nor any assertion that Murdy or Begich were unavailable to be called as witnesses. In light of these facts, I find any inference from the absence of Murdy, Begich or Tierney is one that favors the credibility of Heun and Aitchison. The Municipality did call Capt. Zager as a witness. Zager testified that he did not recall Heun ever saying that the Association could be entitled to monetary relief if it prevailed. Tr. 627- 628. Zager's testimony does conflict with Heun's recollection and requires this Arbitrator to make Arbitrator's Opinion and Award - 25 a credibility judgment. When making such judgments, one's first consideration should be whether an apparent conflict in testimony can be explained by honest differences in perception or recall. Even the most sincere and truthful witnesses can have contradictory recall of events, especially when each witness views and recalls events through the prism of his/her own preconceptions In this case, there is certainly reason to believe that an innocent misrecollection could have occurred. From almost his first conversation with Heun about the shift change, Zager was indicating that the decision was out of his hands and would be made by the Mayor. He was also quite convinced that the Municipality could make the schedule change and thus there was no reason to worry about backpay liability. Consequently, Zager had less reason to make note of any reference to monetary damages because Zager had been assured the change could be made and was shrugging off Heun's protestations to the contrary. Zager's testimony about an affidavit he signed on October 12, 1995 also undermined this Arbitrator's willingness to rely on the accuracy of Zager's recall. In a supplemental affidavit submitted by the MOA in superior court proceedings over the APDEA's suit to compel arbitration, Zager made the following unequivocal assertion: [T]he adoption of the five/eights work schedule by itself has saved hundreds of thousands of dollars and increased police presence in the field as compared to the four/tens schedule then in effect. Ex. A-124, p1-2 (emphasis added in bold). At the remedy hearing before this Arbitrator, Zager testified that the preceding part of his affidavit was nothing more than conjecture; that he had not performed any measurement of actual savings. Q. How did you arrive at the conclusion that factoring our increased manpower, the adoption of 5/8s saved hundred of thousands of dollars? Arbitrator's Opinion and Award - 26 A. Just a projection. A projection with no analysis Tr. 613:8-12 Q. Did you actually conduct any measurement of overtime savings at the time this declaration was prepared? A. I did not. Q. Have you ever attempted to measure any actual effect of the schedule change on overtime hours or dollars? A. Never. Tr. 613:18-25. Captain Zager was far too willing to sign an affidavit attesting to facts that he really did not know were true. That readiness creates the impression that he might also be far too willing to forget conversations with Rob Heun that would now be detrimental to the Municipality's defense. To the extent a difference in recall exists, I credit the recollection of Rob Heun as not only more accurate but also more plausible. Since I have concluded that the potential for monetary damages was discussed by representatives of the parties, this case is distinguishable from those cited by the MOA where damages were denied because the union had never evidenced an intent to seek them. See, e.g., John Deere Co., 70 LA 997 (Grether, 1978); Wright Machinery Co., 49 LA 64 (Daly, 1967). In arriving at the foregoing conclusion, I am mindful of the testimony of the Municipality's current police chief Duane Udland was deputy chief when the 4/10 shift change was implemented and did not become Chief of Police until February 1997. Udland testified that Heun never told him that the Association intended to seek monetary damages. Heun does not dispute that. I do not find this omission to be a persuasive consideration. Arbtrator's Opinion and Award - 27 Chief Udland acknowledged that in August 1994, he participated in a phone call with Bill Bennett, John Marten, Tom Tierney, and perhaps then Chief O'Leary, during which the participants talked about the fact that the Association could possib1y seek monetary damages. Tr. 570. 592. I don't doubt Chief Udland's testimony that over time he concluded that the APDEA was not going after monetary damages because there was no further mention of damages. Udland reached his conclusion because no one told him that the Association intended to seek monetary damages. Udland concedes, however, that no one representing the APDEA ever told him the Association intended to waive a potential right to damages that would otherwise exist. Tr. 572. Udland was not the person Heun dealt with about labor relations matters. Captain Zager, not Udland, was the APD's liaison to the APDEA, and Zager was the person responsible for handling all grievances and other matters arising under the APDEA's collective bargaining agreement. Tr. 534-35. Udland was unaware of statements by the Municipality's own lawyer that the "root" of the dispute was "money," was unaware of warnings of potential liability made to Zager, Begich, and Murdy, and simply made an assumption based upon limited facts known to him. Tr. 572. I have considered the Association's failure to mention monetary damages when Udland attended some meetings of the APDEA's Executive Board. By then, the Municipality's legal counsel had already described the 4/10 dispute as being about money, and Udland and others had been indicating to the Association that once the change to a 5/8 workweek had occurred, decision making on the course of litigation and the Municipality's position on arbitration was controlled by the Mayor and the MOA attorneys. Tr. 581-582 (Udland); Tr. 322 (Heun); 706 (Aitchison). Arbitrator's Opinion and Award - 28 It thus seems unsurprising that APDEA representatives did not make a point of bringing up monetary damages in their contacts with Udland. I likewise find no inconsistency in the fact that Heun made no mention of economic injury in a February 14, 1996 letter to Mayor Rick Mystrom. Ex. A-13. The letter was thanking Mystrom for a meeting they had on February 6, 1996, and suggesting questions Mystrom should ask about shift issue. The letter was sent at a time when Heun was tying to address the Mayor's concerns by focusing on practical alternatives to maintaining a 5/8 schedule for the UFS. I do not find reason in the wording of Heun's letter to question Heun's credibility about the notice given to other individuals. B. MOA Labor Relations Representatives Knew That Monetary Damages Would be an Issue in this Case The Association contends the concept of a "make whole" remedy is so firmly ingrained in the jurisprudence of labor law that the Municipality can be presumed to have expected that such a remedy would result from these proceedings. I need not invoke a presumption because the Municipality's own labor relations professionals have conceded that at least initially they did understand that a make whole remedy could be sought if the Association prevailed on the merits. Even though the grievance made no express mention of potential monetary damages, during the remedy hearing every MOA representative with expertise in labor relations acknowledged that the potential for monetary damages was initially viewed as an implicit part of the APDEA's grievance. Q. [As of August 30. 1994], did you believe the APDEA would be seeking monetary damages in this action, the grievance? Arbitrator's Opinion and Award - 29 A. Me? Yes. . . . . . Q. Why did you believe that monetary damages might be involved in this? A. Based on my experience as a lawyer, and that it was inherent. I had no conversations with anyone from the union at that point in time. Just obvious to me that would be an Issue. Tr. 489:7-21 (Bennett)(emphasis added in bold). Q. Once the change went through and the people had in fact been deprived of the fifth day, in this case, or day off or overtime, what would be your expectation have been, based on your experience, as an anticipated remedy requested by the Association? A. I would have expected a make-whole remedy ......generally speaking, a make whole would be making people whole. Usually it's in a monetary sense: Benefits, wages. It's as though you're trying to put the situation back as though no contract violation had ever occurred. Tr. 263:18-23, 264:2-6 (Marton). Marten also testified that if the APDEA's grievance had contained a specific request for monetary relief, it would not have changed the MOA's response. Tr. 278. One of the MOA's subsequent legal briefs provides written acknowledgment that the Municipality knew the unilateral change could result in monetary damages. In its brief opposing issuance of a temporary restraining order, the MOA discussed a First Circuit decision which rioted that an arbitrator could make whole most losses sustained in the interim by employees if the arbitrator determined that a labor agreement had been violated by the employer. Independent Oil and Chemical Workers of Ouincy. Inc. v Procter & Gamble Mfg. Co., 864 F.2d 927 (1st Cir. 1988). MOA counsel Bennett also noted, in relevant part: Given the fact that many UFS [Uniform Field Services] officers already often work a five-day work week, APDEA's claim of irreparable injury due to disruption in Arbitrator's Opinion and Award - 30 personal lives or the need for more time off rings particularly hollow. What is at the root of this dispute, therefore, is money- i.e.., what is the cost of having UFS officers regularly work a fifth day. That issue is certainly one which can be addressed by an arbitrator. Ex. A-97 at 8. n. I (emphasis added in bold). [G]ranting an improvident injunction will cause MOA irreparable harm because no subsequent award by an arbitrator can replace the lost efficiencies and opportunity to increase the number of officers on the streets effective September 1, 1997, that immediate implementation of the five/eights schedule will realize. Thus, while APDEA has available possible remedies in arbitration if the injunction is not granted, MOA and the public interest has no reasonable remedy if the injunction is granted. Id. at 19 (emphasis added in bold). Bennett admits the preceding assertions were based upon his belief that if the MOA lost in arbitration, a make whole remedy could be fashioned to cover any losses sustained by officers, Tr. 506-507. Moreover, the MOA brief gave the Association clear reason to believe the Municipality well understood that the grievance was ultimately going to be about monetary damages. Tr. 175 (Aitchison). MOA representatives testified that over time, they became convinced the Association was not actually seeking monetary damages in grievance 94-4. That inference was never verified with the Association; it was just based upon the fact that certain MOA representatives were not hearing the Association bring up the issue of damages. If one credits Heun, as I do, then damages were in fact being mentioned to some of the MOA representatives. Even presuming the Association rarely made any reference to damages, that is understandable since the Municipality's legal counsel had already acknowledged that compensatory damages would be an issue in any future arbitration. Arbitrator's Opinion and Award - 31 When judging whose version of events go credit, arbitrators consider the plausibility of a particular assertion. Having swum around in the sea of human experience for some considerable span of years, seasoned arbitrators develop a reasoned capacity to array testimony along a spectrum of likelihood. A key ingredient of sound judgment is this ability to distinguish between the improbable, the possible, and the highly likely. Flagler, "Modern Shamanism and Other Folderol - The Search for Certainty", Proceedings of the 39th Annual Meeting of National Academy of Arbitrators, 187, 199 (1987). In this case, the Municipality has never credibly explained why it would think the Association intended to waive a potential remedy that would otherwise be available in arbitration. The Municipality contends it had no reason to believe the APDEA would seek monetary damages because it was not obvious that APDEA members were suffering any financial loss. It is hard to credit that assertion when a major justification for the unilateral change was the MOA's anticipated reduction in overtime costs. The Municipality now disavows any actual savings, but that was not its contention during the period when the grievance was pending. The MOA was projecting savings in excess of $400,000 per year, and that savings represented wages that individual officers were potentially losing. Exs. A-97 at 3; A-79, A-80, A-84, A-87, A-124. This latter fact was readily understood by the MOA's own former labor relations specialist. At the time the grievance was filed, John Marton handled issues arising from the APDEA contract. Tr. 259-60. Once the unilateral change was made to the 4/10 schedule, Marton realized officers were losing a fifth day off or overtime and thus Marton anticipated a make-whole remedy would be requested by the Association. Tr. 263. Arbitrator's Opinion and Award - 32 A 1991 between the MOA's Municipal Light and Power and the IBEW also makes it seem implausible that the Municipality would assume the Association was waiving an entitlement to compensatory damages. The IBEW case involved a change in work week from Monday through Friday to Tuesday through Saturday for certain employees in the MLP's Customer Services Division. Finding a contract violation, Arbitrator Ken McCaffree directed a return to the status quo and awarded monetary damages to affected bargaining unit employees Ex . A-100. Having been assessed monetary damage in this 1991 arbitration, it is hard to credit the MOA's assertion that it genuinely believed the APDEA would not likewise seek monetary damages for the 4/10 unilateral change. C. The Municipality Was Not Misled by the APDEA's Court Pleadings or Demand Letter to the American Arbitration Association. The MOA takes issue with the fact that when the APDEA re-filed its complaint in December 22, 1995, it sought declaratory relief and still did not make any mention of monetary damages. Ex. M2-l at 94. 1 find that adequately explained by the fact that Association was not seeking a declaratory judgment regarding the merits of its grievance; the APDEA simply sought a finding that the MOA's refusal to arbitrate was a breach of contract and an order compelling the Municipality to proceed to arbitration. Q. In the complaint filed December 1995, had you asked for any monetary damage? A. No. Q. Why not? Arbitrator's Opinion and Award - 33 A. Because the relief that we wanted from the courts from the beginning until the end was the only relief the courts could give, and that is to force the Municipality to arbitrate the contract. The courts never, in my judgment, never had the authority to reach the underlying merits of the grievance. Tr. 153:7-17 (Aitchison). There was thus no particular reason to describe in any further detail the remedy the APDEA expected to seek at arbitration. I have considered the Association's failure to request damages even in the arbitration demand that it submitted to the American Arbitration Association (AAA). Under different circumstances, that could have been a more persuasive consideration. In this case, however, the collective bargaining agreement also does not provide for full service processing by AAA. The parties just use the AAA so obtain a list of arbitrators. I also find it significant that the collective bargaining agreement contains express language requiring the Association to specify which provisions of the CBA are allegedly violated, but there is no express requirement that the APDEA specify the remedy sought. Article V, Section 2.G. Presumably, that is something the parties would subsequently discuss during processing of the grievance through the contractual grievance procedure. Attorney Will Aitchison felt it was obvious that a make-whole remedy was implicitly part of the grievance. Tr. 184-185. Aitchison testified without rebuttal that it has never been the parties' practice to regard the AAA letter as limiting the Association's entitlement to whatever remedy would normally be appropriate for a proven contract violation. Tr. 462, 467. A. The listing of the remedies in Triple A has never been created by the Municipality, the APDEA, or, frankly, any other party to any arbitration that I have been party to in my career, as being jurisdictional. It is nothing more than a technical requirement that has to be complied with.... So the parties have never treated whatever is in the cover letter to Triple A as in any way impacting the appropriate remedy in the case, limiting it. expanding it, defining it in any way. Arbitrator's Opinion and Award - 34 I have never heard the Municipality at any point in time in my relationships with the Municipality - and rye dealt with the Municipality in scores of grievances - ever say in any arbitration or in the grievance procedure, until this proceeding, that the Municipality believes that what is contained in these letters to Triple A In any way restricts the ability of the APDEA or expands the ability of the APDEA to seek an appropriate remedy in this case. Tr. 457:4-459:1. Aitchison's explanation might not have sufficed if I were persuaded that the Municipality had truly been misled, but that is not the conclusion I reach. Rob Heun pointed out the MOA's potential liability for lost days off and overtime if the 4/10 workweek was changed to a 518 schedule. The Municipality acknowledged in writing that it believed the root of the dispute was money and the issue of damages from working a 5th day was one that could be addressed by an arbitrator. Once the MOA made that assertion, the Association was justified in believing that it need not formally document an intent to seek monetary damages because the Municipality had already evidenced its knowledge of that fact. Conclusion: There is far more reason in the record to credit the Association's claimed notice that monetary damages would be sought than to credit the MOA's claimed ignorance of that fact. I find the record persuasive that MOA representatives were orally warned about the potential for monetary damages, and that the MOA gave the APDEA written acknowledgment that this case was about money. In light of the foregoing, it was more reasonable for the Association to proceed with belief that damages were an obvious element of its grievance than for the MOA to assume that the APDEA had decided to forego any entitlement to damages. If the Municipality was misled, that resulted from drawing its own, unverified assumptions that the APDEA's intent had Arbitrator's Opinion and Award - 35 changed. The MOA has not made a persuasive case that the Association should be found to have waived any remedy that would otherwise be appropriate. I.V. CERTAIN OFFICERS INCURRED LOSSES FOR WHICH MONETARY DAMAGES ARE APPROPRIATE. Since I have concluded that the Association should not be precluded from seeking monetary damages, the next issue is what damages are appropriate, if any. The APDEA seeks an award that would compensate members of the bargaining unit for three (3) distinct types of injuries. First, the APDEA contends that all patrol officers who worked a 5/8 work week between September 1, 1994 and September 1, 1998 should receive an overtime pay premium for those hours worked on the fifth day of the workweek.9 This damage award would be designed to compensate the officers for the loss of one day off per week. Second, the APDEA seeks a monetary award for overtime work opportunities that were lost by virtue of the shift change. Finally, the Association contends patrol officers should be compensated for inconvenience the shift change may have caused in their personal lives. A. Monetary Damages Are Appropriate For Work Performed on What Would Have Been a Scheduled Day Off under the 4/10 Schedule. There is no dispute that individuals working a 4/10 schedule have 156 days off per year, while those working a 5/8 schedule have just 104 days off annually. A change from the 4/10 to 5/8 workweek thus results in a patrol officer being scheduled to work an additional 52 days each ____________________ 9 APDEA agrees the Municipality should be entitled to an offset for overtime pay that patrol officers received for working the 9th and/or 10th hours of any scheduled eight hour work day. Arbitrator's Opinion and Award - 36 year. The number of lost days off is affected, however, by Article XII, Section 6 of the collective bargaining agreement. That provision requires officers to use seven (7) days of accrued vacation leave each calendar year, so one of the fifty-two (52) additional days worked on a 5/8 schedule would become a vacation day off. The net impact from the schedule change thus becomes 51 lost days off each year. The Municipality contends the 4/10 workweek was not more convenient, less onerous or preferred by bargaining unit members. I am astonished it would make this assertion, which is belied by the statements of the MOA's own witnesses. Even before the schedule change was implemented, Captain Zager predicted that losing the 4/10 schedule would have a "profound effect on morale . . especially since it disrupts something as fundamental as one's work week." Ex. A-80. p. 7. Zager's prediction was certainly borne out. The record from this case's initial hearing is replete with evidence of how much the 4/10 schedule was preferred by APDEA members. One example of that was pointed out in my earlier decision regarding the merits of the 4/10 change. At one point, . . . Jesse Carr suggested that if the Employer would not [adopt the 4/10 schedule for the entire bargaining unit, then the Union might accept having everyone back cm the 5/8 schedule. The rest of the APDEA bargaining learn 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.... 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 just how strongly patrol officers felt about any change from the 4/10 schedule. Anchorage Police Department Employees Association and Municipality of Anchorage, AAA Case N. 75-L390-00142-97, p.21 (l998) (emphasis added in bold). If the 4/10 schedule had not been Arbitrator's Opinion and Award - 37 greatly preferred by UFS officers, the change would never have become as contentious as Chief Udland acknowledged during his testimony. 4/l0s . . . was by far the single most overriding issue that ever occurred at APD. It was the most overriding issue that's ever occurred in my career in terms of the damage that came as a result of moving to that - that five eight-hour shift. Tr. 557. When an employer improperly changes the work hours of employees, there is plenty of precedent holding that it is appropriate to compensate the employees at an overtime rate for working on what would normally have been time off. The Municipality has already received a decision by Arbitrator Ken McCaffree, holding that since the regular days for IBEW represented employees was Monday through Friday, work outside of this set of days represented "time worked other than the regular day" which by contract should be paid at an overtime rate. Ex. A- 100, p.32. In a case very similar to the one I am now deciding, an overtime monetary remedy was also found appropriate by the Washington Public Employment Relations Commission (PERC). Spokane County Deputy Sheriff's Association, PECB Decision 5698, aff'd PECB Decision 5698-A (1996) (where unilateral change from 5/8's to 4/10's was found improper, employees were entitled to half-time compensation in addition to the compensation already paid). See also City of Lake Worth, Florida, 97 LA 240 (Kanzer, 1991)(change in starting times); Arcata Graphics, 90-2 ARB 8564 (Matthews, l990) (change in weekend days). The MOA would have this Arbitrator disregard the Spokane County decision on the basis that decisions by public agencies offer little useful guidance because they enforce statutory rules with broader remedial authority than labor arbitrators. I find that assertion unpersuasive. This Arbitrator has served in both roles: as an arbitrator enforcing contractual agreements and as a past Arbitrator's Opinion and Award - 38 Chairperson of the Washington PERC enforcing statutory rules. As noted earlier, the remedial authority of labor arbitrators is actually quite broad. See, e.g., Sea Star Stevedore Company v. International Union of Operating Engineers, Local 302, 769 P.2d 428. 431 (Alaska, 1989); Stead Motors v. Automotive Machinists Lodge 1173, 886 F.2d 1200. 1213 (9th Cir. 1989). I do not view arbitral authority as more circumscribed than that of a state or local agency. The MOA notes that under either the 5/8 or 4/10 schedule, officers work and are paid for 40 hours a week. The hourly rate is the same under either schedule, so in the Municipality's view, the schedule change resulted in no financial loss, thus making a damage award inappropri- ate. What the MOA's argument ignores is the fact that Article VII, Section 2 mandates that: "All work performed on the sixth (6th) or fifth (5th) day for those working four-tens (4-10's) shall be paid for at one and one-half (1-1/2) times the regular rate of pay." Ex. M2-1, p.25. The same section of the contract also mandates overtime for "a1l work performed outside of the regularly scheduled shift." If the Municipality had maintained the 4/10 schedule, members of the bargaining unit would have either had an additional day off or have been entitled to overtime pay whenever they were required to work on the fifth day of a work week. Through an expert witness, Ronald Maus, the Municipality has tried to suggest that the vast majority of officers were already working a fifth day under the 4/10 schedule. When discussing an exhibit that summarized the type of overtime officers worked during the pay periods between September 1993 and August 1994, Maus said it appeared that the vast majority of people on the first page of the exhibit had been working a fifth day during their workweek. Tr. 666; Ex. M-50. That assertion merits little weight because it was based just on anecdotal conversations, and on the review of too few payroll slips to ensure an accurate judgment; especially since the pay slips were Arbitrator's Opinion and Award - 39 not coded in a way that indicated what was fifth day overtime. Tr. 690-692 (Maus). Maus' testimony also did not refute the fact that by contract if officers scheduled for a 4/10 workweek did work on a fifth day, they were entitled to overtime pay. The Municipality should have kept the UFS on a 4/10 workweek while satisfying its obligation to bargain over the proposed change to that workweek. I therefore find it appropriate to apply the contractual overtime provisions regarding the 4/10 schedule to the hours actually worked by officers who should have remained on that schedule. Article VII, Section 2 provides a legitimate basis for awarding compensatory damages to affected APDEA members for the hours they worked on a 5th day of each workweek. The purpose of a back pay award is to put affected employees in the same position financially as they would have been if an employer had not acted wrongfully. In the instant case, members of the UFS would have received overtime pay for hours worked on the fifth day of any workweek if the Municipality had not unilaterally changed that workweek. I therefore conclude that affected officers should be compensated at the overtime rate of time and one-half for hours actually worked on what would have been a normal day off under the 4/10 schedule and instead became the fifth day of the work week under the 5/8 schedule. The Association agrees it is appropriate to allow the Municipality an offset for the compensation already paid employees for the work performed on the fifth day of the workweek. In this case, patrol officers have already been paid at a straight time rate for each of the first eight hours worked on the fifth day of the workweek. To bring them to an overtime rate for those hours, they are thus entitled to another four hours of compensation at the straight time rate for each fifth day worked in a workweek. Arbitrator's Opinion and Award - 40 The Municipality is also entitled to an offset for hours paid at an overtime rate under the 5/8 shift, which would not have received overtime compensation under the 4/10 shift. As noted during the hearing, work performed during the ninth and tenth hours of a 5/8 shift is compensated at an overtime rate under the 5/8 shift but payable only at a straight time rate under the 4/10 shift. Tr. 97. For each hour of overtime received by employees under these circumstances, the Municipality should be entitled to an offset of one-half hour of compensation at the regular rate of pay.10 B. An Award for Overtime Opportunities That Were "Potentially" Lost Is Not Appropriate. The Association correctly draws a distinction between work performed on the fifth day of the 5/8 workweek and overtime work opportunities that arose from the level of "call in" overtime that resulted from the way in which the Municipality arranged the 4/10 schedule (herein after referred to as "structural" overtime). Tr. 91, Exs. A-79, A-80. When making the unilateral workweek change, the Municipality estimated it would save at least $400,000 per year in reduced "structural" overtime costs. If those savings were in fact achieved, they would represent lost work opportunities that could be an appropriate basis for an additional monetary award. However, the MOA now claims that it saved no overtime as a result of the shift change. The Municipality essentially admits what the Association claimed all along, i.e. that the Municipality could have achieved the operational results it wanted through other changes in policy. Tr. 608 (Zager). ____________________ 10This offset applies to what the Association has called "shift extension overtime" and not to callback overtime that would have been applicable under either the 4/10 or 5/S shifts. Arbitrator's Opinion and Award - 41 At the remedy hearing, the Municipality offered testimony by Mr. Ron Maus, an expert witness regarding economic damages and accounting measurements. Tr. 654, 657. Based upon an analysis he conducted of the pattern of overtime costs, Maus testified that the overtime savings actually realized by the MOA were a result of policy changes which predated the shift change and did not seem to have resulted from the shift change itself. Tr. 688. While Maus' conclusions do merit some weight, I agree with the Association that they are not irrefutable. As Maus himself concedes, there were a variety of factors, e.g. fluctuating crime rates, the timing of directed overtime patrols, seasonal overtime changes, for which he did not try to account. Tr. 699-703. The Municipality publicly proclaimed that it both expected and had actually realized overtime savings from the change to a 5/8 workweek, so the MOA's new claim that any savings were attributable to other factors is clearly self-serving. I am therefore tempted to use the MOA's own prior statements to support an additional monetary award; hoisting the Municipality on its Own petard, so to speak. The temptation is being resisted because such a ruling would be too easily challenged as punitive in nature and would provide the Municipality with a ready excuse to appeal and forestall compliance with the rest of the remedy herein. This is not a case in which an employer's actions were so egregious that a punitive remedy is justified. Only a remedy that is truly remedial is appropriate. If the bargaining unit really lost additional overtime work opportunities because of the workweek change, compensation for that lost overtime would be appropriate. The burden of proving that loss rests with the Association, however, and from the outset of this dispute, the APDEA has questioned whether the MOA's claimed overtime savings would actually result from the shift change. During the course of the remedy hearing, the Association offered to stipulate that the change in workweek actually resulted Arbitrator's Opinion and Award - 42 in no net overtime savings. Tr. 693-694. In light of the Association's offered stipulation, any monetary award could be readily challenged as punitive and not restorative of what members of the bargaining unit are reasonably viewed as having lost. I therefore deny that requested remedy. C. Monetary Relief Is Not Appropriate for Inconvenience Caused by the Schedule Change. As a final form of relief, the APDEA has requested that its members be compensated in some fashion for the ancillary impact caused by the contested shift change. Examples of such impact include child care arrangements that had to be altered, required changes to preplanned vacations, spouses who had to change work hours to accommodate the new schedule, and changes to college class schedules. Tr. 92-93. The Association suggests these various impacts can be appropriately remedied through an additional monetary award or through an award of prejudgment interest on the total remedy award. The Municipality contends it is inappropriate to provide compensation for anything other than lost wages that result from a shift or schedule change. I am not prepared to accept that blanket proposition. Some kinds of inconvenience can reasonably be presumed to have had a monetary impact on affected members of a bargaining unit beyond the loss of hourly wages. The difficulty comes in trying to assign a monetary value to the various types of impact. The APDEA has never contended that its labor contract prohibited any change to the workweek for the life of the contract. As I noted in my earlier ruling, the contract language did not prevent the MOA from changing the workweek if the Municipality had first satisfied its continuing obligation to bargain over any change. There was thus no guarantee that members of Arbitrator's Opinion and Award - 43 the bargaining unit would not, at some point, experience the inconvenience attendant to changing one's work schedule. The Association can correctly argue that although the Municipality might have eventually become entitled to make the 4/10 change, that would not have occurred until more time passed. The problem arises in trying to determine how long that would have been and who would have been damaged in the interim. A monetary award is not appropriate when its amount is based upon mere speculation. The Association's requested "inconvenience" remedy would be highly speculative. The record before this Arbitrator does not suffice to identify individuals who were actually injured, and it would not be appropriate to assume that everyone would have been impacted in ways significant enough to merit some additional compensation. The requested "inconvenience" remedy is therefore denied. V. A REDUCTION IN THE APPLICABLE PERIOD OF BACKPAY IS APPRO- PRIATE. I have concluded that monetary damages are appropriate, but a remaining issue is the period of time during which such damages should accrue. The Association contends any damages should accrue from September 1, 1994 (when the unilateral change took effect) until September 1, 1998 (when the 4/10 schedule was reinstated). The Municipality contends there are various periods of tune dining which the accrual of any damages should be suspended. The Municipality initially claimed the Association's decision to withdraw the workweek issue from negotiations for the 1995-1998 contact should terminate the running of any backpay award. This assertion was one of the reasons an evidentiary hearing on remedy issues was found Arbitrator's Opinion and Award - 44 necessary. At the hearing, William Bennett and Will Aitchison agreed that there had been mutual agreement to withdraw proposals that related to changing workweeks and allow that issue to be resolved through the eventual resolution of Grievance 94-4. Tr. 75-76 (Aitchison); Tr. 499 (Bennett). The MOA has now withdrawn its contention that the outcome of 1994-95 negotiations provide any basis to limit a backpay award. MOA Post-Hearing Remedy Brief dated June 22, 1999, fn. I. A. Rejection of the MOA's Offer to Proceed to Non-expedited Arbitration Is Not a Basis for Reducing the Monetary Award. The APDEA's 4/10 grievance sought arbitration under an expedited process set forth in Article V, Section 2.N of the collective bargaining agreement. 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 . . . 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. M2-1, p.19 (Emphasis added in bold.) The Association focused on an alleged violation of Article V.2.N because it viewed any change to the 4/10 schedule as a matter that must first be bargained. The Municipality had a different perspective. The MOA felt Article V.2.N was not applicable because Article 7.1 of the labor contract already specified that the workweek for regular employees could consist of either five (5) consecutive days of eight (8) hours per day or four (4) Arbitrator's Opinion and Award - 45 consecutive days of ten (10) hours per day. In the MOA's view, the contract already allowed it to pick either of the two described workweeks so the change was not one over which the Municipality had a mandatory duty to bargain. The Municipality was unwilling to agree to follow the expedited procedures of Article V.2.N for fear that doing so would be viewed as implicitly agreeing that the schedule change was something not already covered by the collective bargaining agreement. Tr. 496 (Bennett).11 The Municipality's concern about proceeding under Article V.2.N's expedited process was understandable and is consistent with a later judicial ruling. In a case involving a rotation dispute grieved under Article V.2.N, the Alaska Supreme Court essentially concluded that one must first decide whether a challenged activity was allowed by the collective bargaining agreement, and thus was not a mandatory subject of bargaining, before an arbitrable issue arises under Article V.2.N. Anchorage Police Department Employees Association v. Municipality of Anchorage 938 P.2d 1027, 1029 (1997). In my earlier ruling on the merits, this Arbitrator followed the same analysis, believing that before one could decide whether Article V.2.N had been violated, one had to determine whether Article 7.1 supported the Municipality's claimed right to change between workweeks. Although it was unwilling to arbitrate under the expedited time lines of Article V.2.N, the MOA contends that in August 1994, it made an unconditional offer to proceed to non-expedited arbitration under Article V, Section 2.A. In the Municipa1ity's view, the APDEA's failure to ____________________ 11 The Municipality also wanted to ensure that the expedited procedure did not swallow up the normal grievance procedure so that virtually anything besides disciplinary action would be controlled by the expedited process in Article V.2.N. Tr 495 (Bennet) Arbitrator's Opinion and Award - 46 accept this offer should cut off the Association's entitlement to a full monetary remedy. The Association contends the offer was not accepted because the Municipality was insisting that any such arbitration could only address compliance with Article 7.1 and not the Association's claim that Article V.2.N was applicable. If the latter assertion is correct, the Association would have had legitimate grounds for refusing the MOA's offer because the offer would have required the APDEA to waive a substantive claim that it was entitled to bring before an arbitrator. In its initial response to the grievance, the Municipality took the position that the issue raised by the APDEA was at best a breach of contract arbitrable under Article V, Section 2.A of the CBA. The Municipality asserted that the issue described in the grievance was "neither procedurally nor substantively grievable under Article V. Section 2-N" Ex.. A-5 at 1. A few weeks later, attorney Peter Partnow sent a letter to Will Aitchison that reiterated the MOA's position. Partnow began by stating that "[t]he MOA was prepared to address any grievance under the normal grievance procedures of the collective bargaining agreement" Ex. A-9 at 1. Partnow then noted that in a prior phone conversation, Aitchison had told him the Association believed the Municipality was refusing to arbitrate the dispute. Partnow stated: I was surprised to hear this. Apparently there is a misunderstanding since the MOA is prepared to process a grievance under the proper procedures of the collective bargaining agreement. The MOA has refused only to use the expedited procedure of Section V.2.N because it is not appropriate for the instant dispute. MOA continues to believe that the Union and its membership are legally obligated to work the shifts as assigned, subject to the right to pursue a grievance and arbitration under Article V.2A. It is thus inappropriate for the court to insert itself into this process. Such dispute as exists can be resolved on the merits under the contractual grievance and arbitration procedure. The MOA remains willing to cooperate in processing any grievance under the proper procedures. Id. at 2 (emphasis added in bold). Arbitrator's Opinion and Award - 47 APDEA counsel Will Aitchison found Parmow's letter confusing, so he called to clarify whether the MOA was just saying it was troubled by the expedited time frame of arbitration under Article V.2.N or was refusing to litigate any claim that the substantive provisions of Article V.2.N had been violated. Aitchison testified that he specifically asked Partnow if the MOA would allow the APDEA to claim the substantive aspects of Article V.2.N had been violated if the Association agreed to use the non-expedited grievance procedure. According to Aitchison, Partnow said "no" and took the position that the MOA was not willing to allow Article V.2.N to be referenced in any arbitration. . . . What I did in response to this letter was to call Mr. Partnow and to pose to him precisely this dichotomy I just posed to you and asked him specifically, if we use the non-expedited procedure, will the Municipality allow us to claim the substantive aspects of Article 5(2)(N) were violated, and his answer was no, the Municipality was not willing to allow Article 5(2)(N) to be referenced in the arbitration. Tr. 45:24-25, 46:1-7 (emphasis added in bold). Aitchison concedes be did not reference this phone conversation in any subsequent correspondence with the MOA. Aitchison's testimony nevertheless stands unrefuted because Partnow was not called to testify on behalf of the Municipality. The Municipality offered no reason for its inability to produce Partnow as a witness on its behalf. Accordingly, I find no reason to disbelieve Aitchison's description of his phone conversation with that MOA representative. The MOA contends Aitchison's testimony was internally inconsistent. It quotes him as saying that in November 1994, the Municipality was willing to proceed to arbitration. Tr. 76:23- Arbitrator's Opinion and Award - 48 77:21. Reading that segment of Aitchison's testimony in isolation is misleading, however. He had previously described the November 1994 agreement as follows: When I got to negotiations in November, one of the first things I did was to talk to Bill Bennett, who was the Municipality's lead spokesperson in bargaining, and talked to him about what the real issues were and what the real issues weren't in the bargaining to try to figure out what the Municipality really wanted in the bargaining. And in that conversation, we addressed the issue of work schedules and talked about the whole issue of the relationship between the bargaining and the ongoing litigation concerning the 4/10 lawsuits, and as a result of those discussions in November, the issue was taken off the table affirmatively for the remainder of the negotiations.... Tr. 75:4-18. . . . Both sides would withdraw their proposals and what they were saying in bargaining and as that sort of stuff, and we would let the issue be resolved in litigation. Because, remember, at the rime we didn't have grievances, we had litigation trying to force arbitration of the grievances. Tr. 76:5-12. Read as a whole. I viewed Aitchison as indicating that he understood the MOA was willing to proceed to arbitration if that was the outcome of the litigation. Such testimony is not inconsistent with Aitchison's description of his phone conversation with Partnow. Aitchison's description of Partnow's response is lent corroboration by the actions of other MOA representatives when rejecting a draft settlement agreement that Aitchison sent in late March 1997. The draft was sent after Aitchison and Bennett reached oral agreement in December 1996 to proceed to arbitration. Aitchison's draft agreement contained no statement of the issue for arbitration. It just made clear that the normal grievance procedures of Article V.2 would apply. Ex. A-20. The MOA's response tried to limit the issue for arbitration to whether Article VII, Section I had been violated The MOA response also asserted that the arbitration would "not be Arbitrator's Opinion and Award - 49 governed by provisions of Article V, Section 2,N." Ex. A-22. The nature of this response seems inconsistent with the assertion that the MOA was offering to arbitrate any grievance under the normal grievance procedures of the CBA. Further discussion finally resulted in the MOA's June 1997 agreement to accept a generic statement of the issue that did not expressly preclude reliance on substantive parts of Article V.2.N. This is the first case in which the Association sought arbitration under the substantive provisions of Article V.2.N, and it is entirely possible that the parties were operating under a misunderstanding about their respective positions. It so, the record is persuasive that this was due in large part to a number of different representatives who were communicating the MOA's position at varying times. A. . . . . .No offense, Mr. Reynvaan, but you're the seventh lawyer on the [scene] for the Municipality, and that's kind of tough. And in the same time I have dealt with six different people in charge of labor relations for API), six different people from the Hill Building or six different people from the Municipality's labor relations office. . . . . . And these people have had different temperaments and different approaches. Tr. 105:22-25, 106:1-6 (Aitchison). While one can understand how the parties might have ended up talking at cross purposes, the nature of the MOA's varying responses gave the APDEA good cause to believe the MOA was making its willingness to proceed to arbitration subject to a requirement that the Association waive any claimed violation of the substantive provisions of Article V.2.N. The Association was justified in believing that it was entitled to make consideration of that provision a part of the record before an arbitrator. Thus, it's unwillingness to waive any reliance on Article V.2.N was justified. The refusal to accept the MOA's offer to arbitrate does not provide an appropriate basis for reducing any remedial award. Arbitrator's Opinion and Award - 50 B. Backpay Liability Should Not Accrue During the Period When Arbitration of the ADPD Grievance Was Not Pursued. Since the Association was refusing to accept the Municipality's apparent conditions for arbitrating grievance 94-4, its other option was to seek court ordered arbitration. The APDEA did initiate judicial proceedings but one of the remaining issues is whether the Association was dilatory in pursuing that litigation. If so, I agree with arbitral precedent that some reduction in any damage award would be justified. See. e.g., Yale & Towne Mfg. Co. LA 1157 (1962); City of Gainesville. 72 LA 1249 (Taylor, 1979). During the remedy phase of these proceedings, Association witnesses have conceded there was a period of time when litigation was put on hold while the Association sought a political solution to the dispute. Tr. 103 (Aitchison); Tr. 318. In an affidavit submitted to the Arbitrator as part of the remedy portion of this case, APDEA counsel Aitchison acknowledged that from the end of 1994 through much of 1995, the Association took no action on its lawsuit to compel arbitration because the Association was attempting to resolve the parties' dispute through other means. Ex. 2-22, 20; Tr. 102-103 (Aitchison). Contract negotiations for a successor labor agreement were very intense in the last few months of 1994. I do not view that period of lawsuit inactivity as sufficient to toll accruing backpay liability. The same cannot be said for the subsequent months in 1995. The APDEA's leadership clearly recognized that there was no certainty of prevailing in any arbitration. It made an understandable decision that before running the risk of adverse arbitral or judicial rulings, the Association would seek to resolve the dispute through other means, Arbitrator's Opinion and Award - 51 primarily political. I can readily understand the reasons for that decision, but agree with the Municipality that backpay should not keep accruing during a period when one party does not keep pursuing its contractual remedy. It is clear from the record that the APDEA took no action in its court proceedings for the first eight months of 1995. I view the period of inactivity as extending only through August, 1995 because the Association filed a motion for summary judgment in September 1995. Ex. M2- 22. 22. In November 1995, the Superior Court dismissed the APDEA'S complaint (without prejudice) because of inactivity. At that point, however, both parties had pending motions for summary judgment. Tr. 104 (Aitchison). In light of the pending motions, the court's dismissal does not seem an appropriate basis for further suspending any remedy. The court's action simply caused the Association to re-file a complaint after a delay that I do not find significant. Once the APDEA re-filed its complaint, a considerable period of time still passed before the matter ultimately reached arbitration but dilatory tactics by the Association were not the cause of this. I won't attempt to chronicle it all, hut the record contains far more evidence of no response or slow response by the Municipality when the APDEA was seeking discovery in support of its pending litigation. Consequently, no other reduction in the period of backpay is appropriate. VI. DAMAGES ARE AWARDED TO OFFICERS BEFORE AND AFTER THE SCHEDULE CHANGE. In a final effort to limit the amount of any monetary award, the MOA contends no damages should be awarded to any officer hired after September 1, 1994 because individuals hired after that date began on the 5/8 workweek and did not experience a change. In the MOA's view, those later Arbitrator's Opinion and Award - 52 hires thereby suffered no loss. I disagree. Officers hired after September 1, 1994 did not experience the inconvenience of having to change their work schedules, but the Associations request for "inconveniences" damages has been rejected. The damages being awarded are for the fact that officers were required to work on what should have been a day off. The APDEA correctly states that regardless of when patrol officers were hired, all UFS members of the bargaining unit lost the opportunity to work a schedule that was highly prized by the bargaining unit. New hires after September 1, 1994 were no less entitled to work that schedule than more tenured officers. Tr. 705 (Aitchison). The Municipality's argument is analogous to saying that if an employer erroneously pays a lower wage rate than required by a collective bargaining agreement, backpay should not extend to employees hired at the lower rare because that is what they accepted when hired. This clearly is not the rule adopted by arbitrators. Irregardless of when an officer was hired, the 5/8 schedule required the officer to work on what should have been a scheduled day off if the 4/10 schedule had been properly maintained. I therefore reject the assertion that the damages being awarded for losing a day off should be limited to officers hired before the effective date of the change from a 4/10 schedule. Summary: The Municipality's unilateral change to the UFS workweek did cause officers to suffer adverse effects for which compensatory damages are appropriate. Subject to offsets and for the backpay period described herein, affected officers are entitled to compensation at an overtime rate for the hours they worked on what would have been a scheduled day off under the 4/10 schedule and which became the fifth day of the workweek under the 5/8 schedule. The Municipality had sufficient notice of its potential liability for such damages, and has not made a persuasive case for entirely denying them. Arbitrator's Opinion and Award -53 AWARD After careful consideration of all oral and written arguments and evidence, and for the reasons set forth in the foregoing Remedy Opinion, the Municipality is directed to take the following actions to appropriately remedy its improper unilateral change: 1. Restore the 4/10 workweek for the UFS. (Pursuant to an interim remedial order, this has already been done, but is mentioned here to simply document the fact that it was part of an appropriate remedy.); 2. Backpay Award: To make affected officers whole for the fact that they were required to work on what would otherwise have been a scheduled day off, the Municipality shall pay each officer and sergeant, who worked during the backpay period defined below, compensation of four (4) hours per week worked in patrol or traffic functions. Such payment shall be made only for weeks in which the employee worked on the fifth day of the employee's scheduled work week, and shall be made at the employee's regular rate of pay during the work week. 3. MOA Offset: The Municipality shall be entitled to deduct from the foregoing award the overtime compensation paid during the backpay period to the described employees for working during the ninth and tenth hours of the employee's work day on a 5/8 shift. The hours worked during the ninth and tenth hours of the employee's work day on a 5/8 shift and for which the employee received overtime compensation shall be referred to as "qualifying hours." The amount of the offset shall be the total number of qualifying hours multiplied by 50%, with the product then multiplied by the employee's regular rate of pay. 4. Backpay period: The applicable period or this backpay award shall be September 1, 1994 through December 31, 1994, and September 1, 1995 through August 30, 1998. The first eight (8) months of 1995 shall not be included. 5. Pursuant to the parties' agreement at the hearing, the Arbitrator reserves jurisdiction to resolve any disputes about compliance with this Remedy Decision. Arbitrator's Opinion and Award - 54 6. Pursuant to Article V, Section 2.1 of the collective bargaining agreement, the Municipality is designated as the losing party responsible for the Arbitrator's fees and expenses. Dated this 2nd day of October, 1999 by Original signed by: Janet L. Gaunt Arbitrator's Opinion and Award - 55