IN ARBITRATION ANCHORAGE POLICE DEPARTMENT ) EMPLOYEES ASSOCIATION, ) ) Grievant, ) ) v. ) ) MUNICIPALITY OF ANCHORAGE, ) ) Grievance No. 94-4 Respondent ) ____________________________________) AAA CaseNo.75 L 390 00142 97 REMEDY BRIEF OF APDEA FOLLOWING MARCH 15 – 17, 1999. REMEDY HEARING I. INTRODUCTION This matter came before Arbitrator Janet Gaunt on March 15-17, 1999, for supplemental hearing on the remedy. By agreement of the parties, post-hearing briefs are being simultaneously submitted and exchanged on June 22, 1999. Rather than set forth a separate statement of facts in this brief, the APDEA will instead address the four questions posed by this Arbitrator in her letter of March 4, 1999, setting forth the facts relevant to each issue in the context of the discussion. Since virtually all of the legal issues attendant to the Arbitrator’s questions have already been discussed at some length in briefs 1 previously filed in these proceedings,’ this brief will for the most part incorporate pertinent sections of prior briefs rather than discussing the law anew. II THE QUESTIONS POSED BY THE ARBITRATOR A. The Municipality Was Not Misled by the APDEA Into Believing the APDEA Would Not Seek A Monetary Remedy In this Matter. The first question raised by this Arbitrator was whether the APDEA misled the Municipality into believing the APDEA would not seek a monetary remedy in this matter.2 As will be shown below, the evidence is overwhelming that the APDEA did not mislead the Municipality. 1. The Facts When the APDEA learned in late July 1994 that the Municipality intended to change the work schedules of patrol employees effective September 1, 1994, it filed the grievance which is the underlying subject of these proceedings. (Tr.10) 3 The grievance demanded that the Municipality exhaust its obligation to collectively bargain with the APDEA before implementing the shift change. At the time the grievance was filed, the shift change had not yet been implemented. Had the Municipality been willing to process the grievance through the expedited grievance procedure in the contract, the matter would have been finally and completely resolved _________________________________ 1Sec Closing Argument Brief of ASSN dated May 26, 1998; Remedy Brief and Reply of ASSN dated (respectively) September 16, 1998 and October 15, 1998. 2The Municipality’s argument that it was misled essentially amounts to an affirmative defense and therefore the Municipality bears the burden of proof as to this issue. See e.g., Ager v. State, Dept. of Revenue, Child Support Enforcement Division. 945 P.2d 1215, 1220 (Alaska 1997), and cases cited therein. 2 by an arbitrator well in advance of September 1, 1994. (Tr. 11, 36-37). Instead, the Municipality refused to process the grievance, claiming in a letter sent by John Marton, then its labor relations representative, that the grievance was not substantively arbitrable. APDEA Exhibit 5.4 The APDEA responded to the Municipality’s refusal to arbitrate the grievance by filing in court a petition for equitable relief seeking an order to compel the Municipality to proceed to arbitration. (Tr. 13). The APDEA did not seek monetary relief in the lawsuit because, under Alaska law, equitable relief is unavailable if there is an adequate remedy at law, and to have requested money damages in the same legal proceedings in which equitable relief was sought would have been inappropriate. (Tr. 16). Bill Bennett, the Municipality’s lead lawyer on the case, anticipated that the APDEA would seek a temporary restraining order blocking the shift change. (Tr. 485). Working on this assumption, in late August 1994, Bennett filed a brief opposing the issuance of a temporary restraining order even though the APDEA had not, in fact, sought a TRO. In the brief, the Municipality made several statements indicating that it understood that a monetary remedy could flow from the grievance if the shift change was implemented. For example, the brief states as follows: 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 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 officers Regularly work a fifth day. That issue is certainly one which can be addressed by an arbitrator ________________________________ 3Unless otherwise noted in the text of this brief, references to the transcript refer to the transcript of the supplemental hearings held on March 15-17, 1999. 4Unless otherwise noted in the text of this brief, references to Exhibits refer to the Exhibits entered into evidence in the supplemental hearings held on March 15-17, 1999. 3 APDEA Exhibit 97, at 8 n. l. 5 (emphasis added) Later in the court proceedings, the APDEA and the Municipality filed cross motions for summary judgment. Attached to the APDEA’s motion was an affidavit filed by APDEA President Rob Heun attesting to the fact that APDEA members had the number of their days off reduced by 52 per year. APDEA Exhibit 43, at 3. As APDEA Attorney Will Aitchison testified, this statement by Heun “would certainly put me on notice that there was a monetary claim if and when this case ever went to arbitration.” (Tr. 29). Eventually the parties entered into a submission agreement that defined the issues before this Arbitrator. The submission agreement specifically states that the issue before this Arbitrator is: Did the Municipality violate the collective bargaining agreement by unilaterally changing the work week of patrol officers from four consecutive days often 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?6 Bennett, who was “involved in the formulation of a draft idea” for the submission agreement, testified that his experience has been that if the collective bargaining agreement does not otherwise limit the remedies available, a statement in a submission agreement granting the arbitrator the ability to award an appropriate remedy defines the arbitrator’s jurisdictional remedial authority. (Tr. 516-517). In Aitchison’s judgment, the eventual agreement the _____________________________ 1The Municipality’s brief also made reference to a decision of the First Circuit holding that an arbitrator had the authority to order a make whole remedy in a case analogous to the one currently before this Arbitrator. APDEA Exhibit 97, at 7. 2See Exhibit 18 and Stipulation Regarding Arbitration dated March 12, 1998. ASSN Exhibit 103, both from March 12-13, 1998 arbitration. The Association’s proposed submission agreement can be found in ASSN Exhibit 27 (Id.), a letter from Mr. Aitchison to Lynn Erwin, Assistant Municipal Attorney: “Did the Municipality violate the collective bargaining agreement when it unilaterally changed the work week for its regular employees from four consecutive ten hours days to five eight hour days? If so what should be the remedy?” 4 Municipality and the APDEA reached to submit this issue to arbitration was an agreement to refer “everything” to arbitration, “the underlying allegations of the grievance, remedial questions, everything was being put into a box, have a bow put on it, and sent to arbitration.” (Tr. 5 l).7 At no time since the Municipality first contemplated making the shift change did Aitchison or Heun make any statements, suggestions, or intimate in any fashion that the APDEA would not be seeking a monetary remedy in this grievance. (Tr. 34-35; Tr. 315-316). Aitchison testified that he “would never” have made such a statement “because that’s what the essence of the claim was. Now that the shift change had been implemented in September of 1994, it became a make-whole remedy case, in addition to a restoration of the prior practice.” (Tr. 52-52). Every representative of the Municipality who testified on the subject stated that he had never heard any representative of the APDEA make any statement directly or indirectly indicating that the APDEA would not be seeking a monetary remedy in this case. (Fr. 490 (Bennett); Tr. 584 (Udland); Tr. 644 (Zager)). 2. The Municipality’s Arguments. At the hearing, the Municipality seemed to rely on three arguments that it was misled by the APDEA into believing that the APDEA would not be seeking monetary damages in this case. The first argument — and the only of the three arguments for which the Municipality submitted any testimony — was that the APDEA did not make public statements that it would be seeking monetary damages in the case. ______________________________ 7At no time during the almost four years it took to compel the Municipality to arbitrate the grievance did any representative of the Municipality inform Aitchison that the Municipality believed the APDEA was somehow constrained from seeking a monetary remedy in this matter. (Tr. 36-37). Instead, the Municipality first raised the claim that the APDEA could not seek monetary damages in this case just prior to the initial arbitration hearing (Tr. 37), and did not raise it in the discussions which led to the Municipality’s agreement to arbitrate the grievance (Tr. 51), nor in the discussions over the wording of the statement of the issue before this Arbitrator. (Tr. 62-63). 5 The second argument made by the Municipality centered on APDEA Exhibit 28, the letter sent by Aitchison to the American Arbitration Association on June 18, 1997, requesting a list of arbitrators to hear the grievance. In the letter, Aitchison informed the AAA that “the remedy sought by the grievance is that the Municipality collectively bargain over the change in work schedule from the 4/10 schedule to the 5/8 schedule.” The third argument made by the Municipality that it was misled by the APDEA relies on the fact that the APDEA did not request damages in the underlying grievance. The Municipality submitted no testimony in support of this argument, and provided no witness who testified that she or he was in fact misled by the language of the grievance. 3. Argument At the outset, it is appropriate to address the general concept of what it means to “mislead” another. To “mislead” another involves the taking of some action or the making of some statements which convince another to believe something that is incorrect. The very notion of the word involves “leading” another in a wrong direction, and “leading” connotes guiding, causing one to follow, and showing the way. Webster’s New World Dictionary, Second College Edition 801, 909 (William Collins 1980). To “mislead” another is to engage in conduct that is the equivalent of deception. American Heritage Dictionary 438 (Houghton Mifflin 1983). Resolving every conflict in the evidence in favor of the Municipality, the record is clear that no representative of the APDEA ever said or did anything to mislead the Municipality into believing that it would not seek a monetary remedy in this case. The evidence was uncontradicted that neither Heun, who was primarily responsible for communication between the APDEA and the Municipality on the 4/10 issue, nor Aitchison, who represented the APDEA 6 throughout the legal proceedings, said anything that could be construed as a statement that the APDEA would not be seeking a monetary remedy in this matter. (Fr. 34,296, 315-316). Not only is there no evidence that the APDEA did or said anything to mislead the Municipality as to whether it would be seeking a monetary remedy, there is ample contrary evidence. Heun testified that he told both Mark Begich and Joe Murdy that the APDEA would seek a monetary remedy in this matter. Both Begich and Murdy were members of the Anchorage Assembly (Anchorage’s city council), and both occupied positions of prominence on the Assembly. Murdy served on the Assembly’s public safety committee. (Tr. 300). Begich served as the chair of the Assembly, and was involved in the budget preparation process. (Tr. 299). Heun told Begich that an eventual arbitration award would “impact the budget,” and that the Municipality could be liable for damages in the case. (Tr. 299). On numerous occasions, Heun told Begich there were financial implications to this grievance, testifying that the subject “was a constant theme of mine” with Begich. (Tr. 372). The record is also clear that the Municipality’s labor relations staff knew of Heun’s statements that the APDEA would be seeking a monetary remedy in this case. Assembly Member Murdy told Heun that be met with the Municipality Employee Relations Director, Tom Tierney, and discussed the APDEA’s 4/10 grievance. Murdy related that he told Tierney that “the police officers were saying that there was going to have to be costs incurred to make up for the 52- days-a-year loss,” and that “Tierney heard what he said.” (Tr. 30 1-302). Significantly, the Municipality failed to call Begich, Murdy, or Tierney as witnesses, though all three (and particularly Tierny) would seem to be critical witnesses to its claim that it had been misled by the APDEA. 7 Further, the Municipality’s labor relations representative initially designated to handle the grievance on behalf of the Municipality — John Marton — believed that the APDEA’s grievance encompassed a monetary remedy. As Marton testified, the “normal” remedy for a grievance challenging a change in past practice would incorporate a make-whole monetary remedy. (Tr. 264). Most importantly, the attorney representing the Municipality in the litigation over the Municipality’s failure to process the grievance to arbitration — Bill Bennett — believed that the APDEA’s grievance encompassed a monetary remedy. In Bennett’s words, he believed that the APDEA was seeking monetary remedies in the grievance: “based on my experience as a lawyer, and that it was inherent.” Bennett further indicated that the APDEA’s intention to seek a monetary remedy was “obvious” to him. (Tr. 489). In the only controverted evidence on the subject, Heun testified that, even before the shift change, he told Zager that the APDEA would in fact be seeking a monetary remedy if the Municipality implemented the change. Heun testified that Zager was undaunted: “. . . And I told him that I thought that, 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. [By Mr. Brown] And what was his response? “A. He says, well at different times we’ve talked — we talked about it philosophically, and 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? 8 “A. Oh, he told me that the — that all the evidence’ 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. “Q. Did he seem to be daunted or fazed at all by your suggestion to him that the Association would be able to seek monetary damages which would offset any gain that they might make? “A. No. He was - Captain Zager was pretty adamant that they had the right to implement these changes without bargaining.” (Tr. 297-298). Heun spoke with Zager about the shift change on many occasions. (Tr. 366). In response to a question posed by the Arbitrator, Heun testified that in his conversations with Zager, the term “big bucks” was “used a lot.” (Tr. 365). Importantly, Zager did not testify that he did not discuss with Heun the fact that the APDEA would be seeking monetary relief in this matter. Rather, Zager only testified that he did not “recall” having such conversations. (Tr. 644).9 In sum, then, the evidence before this Arbitrator shows that: (1) Heun made statements to several prominent representatives of the Municipality that the APDEA would be seeking monetary relief in this grievance; (2) Heun’s statements were related to the Municipality’s head of labor relations; (3) The Municipality’s lead lawyer in the early stages of this grievance and the Municipality’s labor relations representative in charge of handling the case believed that the APDEA was seeking a monetary remedy; and (4) The APDEA said and did nothing which implied or directly indicated that it would not be seeking a monetary remedy in the case. ___________________________________________ 8The APDEA believes that Heun actually used the word “avenues” instead of the word “evidence” in the quoted passage. The thrust of Heun’s testimony is the same no matter which word is correct. 9Even if Zager’s lack of recollection can be construed as a denial that would place his testimony in conflict with that of Heun, Heun’s testimony on the point should be credited. Not only was Huen’s testimony specific and forceful, (Tr. 309), but Heun has testified at length before this Arbitrator in a candid, truthful manner. And, whatever one may make of Zager’s memoranda, affidavits, and subsequent testimony to this Arbitrator (and discussed infra) as to the overtime savings that either did or did not occur as a result of the shift change, it is clear that Heun’s testimony on the subject of his conversations with Zager is credible. 9 a. The Municipality’s Argument that the APDEA was not Publicly Clamoring for Money Damages. The unrebutted evidence at hearing was that the APDEA told several representatives of the Municipality that it would be seeking a monetary remedy, that all concerned believed that a make- whole monetary remedy is a “normal” and “obvious” part of any unilateral change grievance, and that no representative of the APDEA did or said anything to lead the Municipality into believing that a monetary remedy was not an issue. The Municipality took an unusual approach to overcoming this factual problem. Rather than calling the most knowledgeable witnesses on the issue - Begich, Murdy, and Tierney - the Municipality relied exclusively on the testimony of Bennett and Police Chief Duane Udland, who testified that the absence of things done by the APDEA led them to believe that the APDEA would not be pursuing a monetary remedy. Bennett testified that he came to believe that the APDEA was not requesting a monetary remedy because of the absence of conversations with the APDEA in which representatives of the APDEA raised the issue. (Tr. 491).10 However, when asked whether any representative of the APDEA stated that a monetary remedy was not at issue, Bennett testified: “No. No. I can’t claim in any way, shape, or form that that occurred.” (Tr. 490). Udland, who also initially believed that the APDEA had the right to seek monetary relief in this grievance, (Fr. 570), testified indirectly that he began to believe the APDEA would not be seeking money damages in these proceedings because the APDEA failed to demand monetary relief in the court proceedings filed to compel arbitration. _________________________________________ 10Unlike Bennett, Marton never changed his belief that the APDEA would be seeking a monetary remedy in the grievance. 10 Even disregarding the undisputed facts that Heun told representatives of the Municipality that a monetary remedy was being sought, each of these arguments raised by the Municipality fail for one overriding reason — the beliefs of Bennett and Udland were not produced by anything the APDEA did or said. The APDEA’s conduct while this matter was following its tortured route to arbitration was perfectly reasonable. There was no purpose for the APDEA to have made a public clamor about the issue of money damages, for the five major labor relations players involved in the grievance (Aitchison, Bennett, Heun, Marton, and Udland) all believed that the APDEA’s grievance encompassed a claim for monetary relief once the Municipality refused to bargain over and implemented the shift change. The APDEA was doing everything it could to bring this matter to hearing in the face of the Municipality’s wrongful refusal to proceed to arbitration, and the steps it took were the only ones available to it under the circumstances. Even if the APDEA was in fact silent on the issue of a monetary remedy — which it was not — its conduct under the circumstances cannot rise to the level of conduct which “misled” the Municipality into believing anything. The Municipality seemed to rely most heavily on the testimony of Udland on the issue, pointing out first the etiology of Udland’s beliefs and concluding with his testimony as to what he would have done had he continued to believe that a monetary remedy was being sought. Even if this testimony is considered in complete isolation, it fails to persuade. Udland testified that his conclusions about a monetary remedy came from his readings of the APDEA’s initial pleadings in the lawsuit to compel arbitration: I mean, I would have thought that at least in the initial filing of the suits, there would have been some mention in there that part of what they would be seeking is monetary damages. Again, I’m not a lawyer, and maybe what Will Aitchison testified to would make sense to another lawyer, but it doesn’t make sense to me as a layman. And it certainly makes no sense to me that when the complaint was 11 amended or refiled there wasn’t something put in there about damages, well over a year later. (Tr. 558-559). Udland testified that he was not advised by Bennett or any of the Municipality’s attorneys that the APDEA was foregoing monetary relief in the grievance, nor was he told by Heun or Aitchison that no such relief would be sought. (Fr. 570-571, 584). Most telling, Udland also indicated that he did not believe he read the Municipality’s anticipatory response to the never-filed request for a temporary restraining order, and agreed that had he read the comments made by the Municipality in the response that the root of the grievance lay in money, it would have caused him “some pause and concern.” (Tr. 567). Udland further testified that had he known the APDEA would be seeking monetary relief in the grievance, he “certainly wouldn’t have sat by and not voiced my opinion that we need to move this thing along. . .“ (Tr. 557).11 However, since APDEA could not have sought monetary damages in the court proceedings, (Fr. 149-150), Udland’s incorrect subjective beliefs as to what the law allowed the APDEA to seek in court simply cannot constitute the APDEA engaging in misleading conduct. Even accepting Udland’s testimony that if APDEA had been more vocal about its intention to seek monetary relief, he might have done something different, the record is clear that the Municipality’s position in the matter would not have changed one whit had the APDEA been declaiming from the flanks of the Chugach Mountains that it would be seeking a monetary 12 remedy. At its heart, the decision to change to a 5/8 shift, to the extent that it ever had any valid operational roots, quickly became a political decision in which the Mayor and the chief were invested. (Tr. 324). The political nature of the issue was apparent when the Mayor held a “fullblown press conference” to announce the shift change. (Tr. 561). Then, on the eve of the implementation of the shift change, Udland and Zager wrote a memorandum to “the file” after the Mayor announced the shift change to the public, opining that if a TRO were to issue, “the Mayor and Police Chief will appear helpless to govern, and may not ever have their well-earned respect and confidence restored.” APDEA Exhibit 87, at 2. The political nature of the dispute was underscored by the unrebutted evidence in the hearing that Udland told the APDEA’s Executive Board on several occasions that the matter of shift configuration was out of his hands, and was solely a matter for “city hail.” As Heun testified, when Udland came to meetings of the APDEA’s Executive Board, he said many times that “the mayor had bought off on the 5/8s. .. . It wasn’t open for discussion.” (Tr. 322). Udland testified that decisionmaking on the course of litigation and the Municipality’s position on arbitration was left to the Municipality’s attorneys and the Mayor. (Tr. 58 1-582). Udland admitted that so long as the APDEA was insisting on raising claims under Article V(2)(N), the Municipality would not have been willing to submit to arbitration, (Tr. 578), and that had he _____________________________________ 11 A perhaps unintentional contrast in Udland’s testimony on his actions after the change in shifts is instructive. Udland testified that the adverse impacts in the Department from the loss of 4/10’s “was by far the 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. Damage in terms of relations. It was very troubling. So we would have liked to have gotten it done.” (Tr. 557). In spite of this, Udland apparently did nothing to hasten the Municipality’s attorneys, but has now testified that had he known that the APDEA would be seeking a monetary remedy in these proceedings “I would have been demanding that our legal staff or somebody go to court and get an injunction.” (Tr. 557). This after the fact position is certainly undercut by his testimony that the handling of this matter was solely within the hands of the Mayor and Municipal Attorneys. (Tr. 581-82). 13 raised the issue of proceeding to arbitration more expeditiously upon learning that the APDEA would be seeking monetary relief, it “wouldn’t have been [his] decision” as to whether the Municipality would submit to arbitration, and that submitting to arbitration “was not my call.” (Tr. 585).12 In Aitchison’s words, both Udland and Zager “made it very clear that the decision as to 5/8s or 4/10s, as to whether or not to go back to 4/10s or whether to go to some other form of shift, was a decision that did not reside within the Anchorage Police Department, was instead being made in what was either referred to as the Hill Building or by the mayor.” (Tr. 706). In other words, the decision to return to 4/10’s was “politically impossible. The mayor of Anchorage had tied too much political weight onto his statements that the change from 4/10s saved a considerable amount of money and freed up patrol time.” (Tr. 707).13 In short, Udland’s testimony fails to establish that the APDEA misled the Municipality into doing anything. Udland not only testified that no individual from the APDEA said or did anything to mislead him, he was unaware of statements by the Municipality’s own attorneys that the “root” of the dispute was “money,” was unaware of statements made by Heun to Begich, Murdy, and Zager, and premised his conclusions on the APDEA’s failure to seek a remedy in court that was simply unavailable to the APDEA. Even if these flaws in the Municipality’s ___________________________________ 12The individuals whose “call” it would have been — the Mayor and perhaps Tierney — were not called as witnesses by the Municipality. 13In addition, the unrebutted evidence before the Arbitrator is that the Municipality routinely engaged in dilatory conduct in the processing of grievances, conduct which included, in one grievance, failing to return even one of twenty-four phone calls, and conduct which had Aitchison for the first time in his career contemplating filing an unfair labor practice complaint alleging a breach of the obligation to bargain in good faith solely because of the Municipality’s tardy processing of grievances. (Tr. 710). Particularly viewed in the context of this case — which took four years to bring to an initial arbitration decision — any assumption that the Municipality would have been willing to accede to pressure from Udland to expedite the grievance process or abandon its claim that the grievance was not substantively arbitrable is dubious indeed. 14 reliance on Udland’s testimony did not exist, the fact remains that Udland was powerless to steer the Municipality from its pre-determined course. It is critical to remember that that the Municipality was well represented in this matter by experienced labor relations professionals. Those individuals all believed that the APDEA would be seeking a monetary remedy in these proceedings. All understood that the natural remedy flowing front a unilateral change grievance would include make-whole provisions.14 All admitted that the APDEA never said or did anything that could be construed as an abandonment of the natural monetary remedy. For these reasons, on both factual and legal grounds, this Arbitrator should reject the Municipality’s argument that the failure of the APDEA to publicly clamor for or seek in court proceedings a monetary remedy somehow misled it into believing that no such remedy was being sought. b. The Municipality’s American Arbitration Association Argument. On the basis of the factual record before this Arbitrator, the Municipality’s argument centering on Aitchison’s letter to the American Arbitration Association cannot amount to an argument that it was misled by the APDEA. In order to argue that it was “misled” by the letter, the Municipality would have to have produced some representative of the Municipality to testify that he or she read the letter and formed the conclusion that the APDEA would not be seeking __________________________ 14 See, e.g., testimony of Mr. Bennett. (Tr. 506-508). 15 monetary damages.15 The absence of such evidence alone disposes of any claim the Municipality may have based on the letter. The only testimony in the record on the AAA letter was that of Aitchison. In addition to indicating his understanding of the AAA’s practices which produced the wording of the letter to the AAA, Aitchison testified directly and without contradiction that the letter to the AAA was in no way intended to mislead the Municipality, and that “the Municipality knew from the first month that the APDEA would be seeking a monetary remedy in this case.” (Tr. 171). Aitchison testified that it was his understanding of the AAA’s practices that when requesting a list of arbitrators, “what you were supposed to do is go back to the original grievance and recite the remedy requested in the original grievance.” Aitchison also testified that he had had no conversations with any representative of the Municipality who had taken the position that the letter to AAA somehow restricted the remedy available in these proceedings, and that “until this hearing, nobody from the Municipality has ever said to me that anybody in the Municipality believed the APDEA would not be seeking money damages in these proceedings.” (Tr. 64). As Aitchison testified: “Q. [By Mr. Reynvaan] Did you make any written communication to the MOA that the APDEA was seeking monetary relief in connection with this arbitration? “A. Only to the extent — and I guess this would apply to the oral representations as well. Only to the extent that when we finally got down to the agreement to arbitrate and put language down that eventually became the submission agreement, that we were very clear in saying the arbitrator could award whatever the appropriate relief was. To me, that has always been a shorthand on both sides of the table, management and labor, that that could ________________________________________ 15 See, e.g., Barber v. National Bank of Alaska. 815 P.2d 857, 862 (Alaska 1991) (outlining elements of cause of action for knowing misrepresentation or deceit, which include the element of “justifiable”) (citation omitted). 16 involve monetary relief. But was it ever specifically said the APDEA is going after money damages in this case, it was not said by me. It was always assumed that this was a make-whole remedy case. Only an assumption on my part, said by other people, but it wasn’t specifically said by me. “Here’s why, Mike. I didn’t know until, I think it was, two weeks before the hearing on the merits of this case, I never heard from anybody representing the Municipality that the Municipality was claiming that it had no idea the APDEA was asking for money damages in this case, Never heard that. Had I heard a whisper of that, I would have said, yeah, this is a make-whole remedy case. Absolutely. Nobody ever said it, though. It was just something that was raised on the eve of arbitration.” (Tr. 173-174). The Municipality spent a significant amount of time at the hearing showing that there were minor variations in the past in the statements of the remedy requested in the grievance as characterized in the APDEA’s letters to the AAA and as found in the grievances themselves. (Tr. 448471). Should the Municipality rely on these variations in its post-hearing brief, several points are in order. First, the variations pointed out by the Municipality were non-substantive in nature, and in most cases were trivial in scope. Second, in none of the examples cited by the Municipality (MOA Exhibits 25-38) did the Municipality suggest, intimate or argue that the APDEA was restricted to the remedy requested in the letter sent to the AAA. Tr. (471). Third, there simply is no law whatsoever that a letter to the AAA, to the FMCS, or to any other arbitration service somehow limits and defines the remedy available in the arbitration process. Fourth, though the history of these proceedings have been tortured and contentious, at no time did any representative of the Municipality even raise the issue of the AAA letter until the first day of arbitration in this matter, even though the APDEA had specific discussions about the phrasing of the issue before this arbitrator with Bennett, Tiemey, Hughes, and Erwin. (Tr. 472). Fifth, and most critically, any reliance by the Municipality on the variations of phrasing of the remedy in prior letters to the AAA is overcome by the fact that: (1) there is no evidence in the 17 record that the Municipality was, in fact, misled by the letter to the AAA; and (2) the subsequently negotiated submission agreement contains a clear statement of broad remedial authority for this Arbitrator. 16 c. The Municipality’s Argument Based on the Wording of the Grievance. The Municipality next contends that the Arbitrator cannot issue an appropriate monetary award in this matter because the grievance falls to request such a remedy. There are four reasons to reject hurdles to accepting the Municipality’s argument. First, for the Municipality to claim that it was misled by the wording of’ the grievance, it would seem almost basic that the Municipality should be required to produce even one witness to testify that the wording of the grievance actually misled the Municipality. The Municipality failed completely to produce such a witness. Indeed, the only past or present representative of the Municipality who testified on the issue was produced by the APDEA, not the Municipality. At the time the grievance was filed, John Marton was the Municipality’s representative in charge of handling labor relations issues arising out of the Anchorage Police Department. (Tr. 259). Marton testified on the basis of his _________________________________ 16The significance of this fact was underscored by the testimony of Mr. Bennett in his response to the following questions by Mr. Brown: “Q. You agree that the formulation of the submission issue to the arbitrator would be an important issue in this particular case? “A. Yes.... (Tr.515.23-5l6.l) “Q. Assuming for the purposes of my question that the collective bargaining agreement does not limit or expand the scope, does the submission agreement of issue stipulated to by the parties and submitted to the arbitrator define the jurisdiction to the arbitrator to arbitrate the grievance and to award an appropriate remedy? “A. When you add the word “appropriate remedy,” most of the stipulations that I have ever seen simply say did this constitute a violation of contract and, if so, what is the appropriate remedy. “Q. And when you (sic] that situation, then the arbitrator is free to award an appropriate remedy pursuant to the jurisdictional statement of the issue; correct? 18 knowledge of the Municipality’s expectations that he believed a make-whole remedy was part and parcel of the APDEA’s grievance. (Tr. 264). Marton also testified that had the APDEA’~ grievance contained a specific request for monetary relief, it would not have changed the Municipality’s response. (Tr. 278). That testimony negates the Municipality’s argument that it was harmed by how the grievance was drafted. The evidence before the Arbitrator is uncontradicted that both the Municipality and the APDEA assumed in general that grievances challenging unilateral changes in past practices included the ability to request and receive make-whole remedies. Marton testified that “my assumption would be that it would have - that damages would be awarded if- if the change were found to be a violation and had not stopped, which is — found fairly typical in a number of cases.” (Tr. 267). Bennett testified that it was “obvious” that a make-whole remedy was incorporated into the grievance. (Tr. 489)17 Aitchison testified along similar lines that it would be a “natural assumption” that the grievance contained a make-whole remedy. (Tr. 184-185): At the hearing, the Municipality spent a good deal of time cross-examining the APDEA’s witnesses on the fact that grievances filed by the APDEA in the past had requested monetary remedies. The Municipality’s presentation of prior grievances established that the grievances fell in two categories — those where the Municipality had already taken action or implemented changes, and those where the action or change was only prospective in nature. While the APDEA has requested monetary relief in the first category of cases with some regularity, it has never requested monetary relief where, as here, the action or change was prospective in nature. (Tr. ______________________________________________________________________________ “A. Yes.” (Tr. 516. 13-517.3). 17According to Bennett, at the time he filed his TRO response, he believed a make whole remedy could be fashioned to cover any losses sustained by the officers in the event the MOA lost in arbitration. (Tr. 506-507). 19 185). In every case the APDEA has demanded that the Municipality collectively bargain over the intended change, and has included a remedial request virtually identical to the request made in the underlying grievance in this matter — that the Municipality be compelled to discharge its bargaining obligation before implementing the change. (Tr. 185-186). Third, the Municipality has entirely failed to address the critical issues concerning the timing of the filing of the grievance. The Municipality announced on July 28, 1994 that it intended to unilaterally change patrol work shifts on September 1, 1994. APDEA Exhibit 3. On August 1, 1994, the APDEA filed its grievance challenging the intended unilateral change, contending that the Municipality had an obligation to bargain over the change under the substantive provisions of Article V, Section 2(N). The terms of the contract require that rejected claims for bargaining be processed as expedited grievances under Article V. Section 2(N), which calls for arbitration of the grievance to be completed within 7 days. Thus, had the Municipality proceeded to arbitration on the grievance as required by the contract, the grievance would have been completely resolved by August 8, 1994, well in advance of the Municipality ever changing the shifts of patrol officers. Under such circumstances, the only remedy that could have been included in the grievance would have been to compel the Municipality to bargain over the anticipated change. Since the change in shifts had not yet been made, a specific request for monetary damages would have made no sense. It was only after the Municipality not only refused to process the grievance to arbitration, but made the unilateral change, that the issue of money damages arose. At that 20 point, both sides — the APDEA and the Municipality — assumed that these proceedings would involve a claim for money damages.18 Fourth, the cases cited by the Municipality in its prior briefs in support of its claimed proposition that grievances must contain reference to specific remedies for an arbitrator to award those remedies help its cause little. As was shown in the APDEA’s Remedy Brief and Reply, not one of the cases cited by the Municipality involves a party such as the Municipality which entered into a submission agreement that explicitly gave the arbitrator the authority to decide upon an “appropriate remedy.” (p. 50; p. 14). As described in the APDEA’s Reply Brief on Remedy, the law is clear that an arbitration submission agreement supercedes any prior “pleadings” in the case and establishes any limitation or lack of limitation on the arbitrator’s remedial authority. (Id. p. 15). Here, the submission agreement gives the Arbitrator the complete power to award any remedy which is appropriate under the circumstances. 3. Conclusion — The Municipality Knew The APDEA Would Be Requesting Damages In These Proceedings, And The APDEA Did Nothing To Mislead The Municipality Into Believing That Damages Would Not Be Sought. The overriding factual problem with the Municipality’s “misled” claim is that no individual representing the Municipality was, in fact, misled by anything that the APDEA said or did in the course of handling the grievance. Not one witness testified to being misled by the AAA letter. Not one witness testified to being misled by the wording of the grievance. And the list of witnesses who were within the Municipality’s power to call to testify, but who did not appear before this Arbitrator, is significant indeed: Begich, Murdy, Tiemey, the Mayor, any of ________________________________ 18The Municipality may contend that the APDEA should have amended its grievance at some point in time to specifically request a make-whole remedy. Whatever may be the validity of this argument from a legal standpoint 21 the six labor relations representatives who handled matters with the APDEA for the Municipality while the 4/10’s grievance was pending. And yet the Municipality produced not one of these witnesses. The APDEA did, in fact, tell the Municipality that it would be seeking a monetary remedy. Heun’s testimony that he told Begich and Murdy as to the intention to seek a monetary remedy, and his testimony that Murdy relayed the information to Tiemey, is uncontradicted. Further, Heun’s account of his conversation with Zager in which he discussed a monetary remedy should be credited by the Arbitrator. Huen testified to his repetition of the need to compensate the officers for their lost time off (Tr. 299) and the Municipality’s representatives testified that they also believed that a monetary remedy was available in this grievance. The Municipality quite clearly thought that the APDEA would seek a monetary remedy in these proceedings. What it now characterizes as the APDEA’s silence then caused it to think that the APDEA would not be seeking a monetary remedy. Even if one ignores the fact that Heun’s uncontradicted testimony about his statements are hardly “silence” on the subject, it is clear that silence does not amount to misleading conduct. From July and August, 1994, and certainly from the point where the Municipality told a Superior Court judge that it believed that the root of the dispute was money, the APDEA knew that the Municipality believed that it would be seeking the normal make-whole remedy in these proceedings. When two parties share the same belief, silence by one of them does not mean that the belief is no longer shared. And certainly silence in such circumstances does not amount to misleading statements or conduct. ______________________________________________________________________________ — and cases involving the amendment of grievances after they have been filed are rare indeed, the record is uncontradicted that the Municipality and the APDEA do not have a practice of amending grievances. (Tr. 323). 22 B. Prior To December, 1996 The Municipality Was Insisting That The APDEA Drop Its Claims Under Article V(2)(N). The second issue raised by the Arbitrator was whether the Municipality was insisting prior to December 1996 that the APDEA drop its claims under Article V(2)(N) as a precondition to submitting to arbitration. This question was based on the Municipality’s argument following the conclusion of the previous hearing that the APDEA should have accepted the Municipality’s offer to proceed to arbitration in August 1994, and that the failure by the APDEA to do so cuts off its ability to now seek a full monetary remedy. The evidence at the hearing shows without contradiction that the Municipality refused to proceed to arbitration prior to December 1996 unless the APDEA agreed to waive its claims under Article V(2)(N), and that it echoed this position in 1997 when the parties were attempting to resolve the terms under which this dispute would be submitted to arbitration. 1. The Facts. In the August 2, 1994, letter in which the Municipality announced its refusal to process the grievance under the past practices clause of Article V(2)(N) — the only contract article cited by the APDEA in the grievance as having been violated — the Municipality implied that the APDEA arbitrate the grievance under the hours of work article in the contract, Article VII(l). The APDEA was seriously concerned by this implication. As explained by Aitchison: My concern at the time was that by proceeding to arbitration under other than Article V(2)(N), by claiming, as Mr. Marton suggested, that we proceed to arbitration under Article VII(1), which was the hours of work section of the contract, and proceed through the vehicle of Article V(2)(A), which is the non- expedited grievance procedure in the contract, my concern was that the Municipality was attempting to get the APDEA to waive its claims under Article V(2)(N), which was the past practice clause in the contract. My thought at the time was that the APDEA’s primary claims in this grievance stemmed from a violation of a past practices clause, and to agree to what Mr. Marton was 23 proposing would either implicitly or explicitly waive the APDEA’s primary claims in the grievance. (Tr. 12-13). As will be shown below, Aitchison’s suspicions of the Municipality’s true intent were shortly borne out. After the APDEA’s request for equitable relief was filed, Aitchison discussed the lawsuit with Peter Partnow, an Anchorage attorney filling in for Bennett, who was on vacation. (Tr. 40). On August 19, 1994, Partnow followed up those discussions with a letter to Aitchison. In the letter, Partnow offered to arbitrate the grievance under Article V(2)(A) — the contract’s regular grievance procedure — but was unwilling to do so under Article V(2)(N). APDEA Exhibit 9. Aitchison believed the letter could be construed in either of two ways. Aitchison thought that one possible interpretation of Partnow’s letter was that the Municipality was unwilling to follow the expedited procedures in Article V(2)(N) but was willing to allow the APDEA to raise its substantive claims under Article V(2)(N) in a non-expedited arbitration hearing. The alternate possible interpretation was that the Municipality was attempting to get the APDEA to waive its claims under the substantive provisions of Article V(2)(N) and was also not willing to follow the expedited procedures in Article V(2)(N). (Tr. 43-44). The key distinction between the two positions relate to the two aspects of Article V, Section 2(N). The first aspect of Article V, Section 2(N) is a substantive provision that prohibits the Municipality from changing mandatorily negotiable past practices without first bargaining with the APDEA. The second aspect of the article is an expedited grievance procedure, which calls for expedited processing of both grievances filed under the past practices clause and grievances filed over light duty issues. If the Municipality’s request made through Partnow’s letter was directed only at the procedural aspects of Article V(2)(N) — solely attempting to get the 24 APDEA to use the non-expedited grievance procedure in Article V(2)(A) — the APDEA would not have been troubled by the request and would have readily assented to it. (Tr. 45). If, on the other hand, the Municipality’s request was that the APDEA waive its claims under the substantive provisions of Article V(2)(N), the APDEA would have immediately rejected the request as “unthinkable.” (Tr. 45). To determine precisely what the Municipality’s position was, Aitchison called Partnow. As Aitchison testified at the hearing, Partnow made it clear that the Municipality wanted the APDEA to waive its substantive claims under Article V(2)(N), and that the Municipality was not willing to allow Article V(2)(N) to be referenced in arbitration. (Tr. 45-46). Bennett, who was not involved in the discussions between Partnow and Aitchison, gave testimony on the matter which is somewhat confusing, but which is overall consistent with Aitchison’s testimony. At one point Bennett testified that “the issue with 5(2)(N) never was what the union wanted to claim. The issue with 5(2)(N) is what the Municipality’s position could be at the arbitration.” (Tr. 494). At another point Bennett testified that “We’re not going to agree this goes under 5(2)(N) and somehow wipe that out.” (Tr. 495). Bennett also testified that “So if we’d gone under 5(2)(N), we were saying, yeah, we had a mandatory obligation to bargain, and our whole argument was, no, we didn’t have an obligation to bargain because there was a way — there was a provision that covered this very issue.” (Tr. 496). At another point, Bennett testified that he agreed with Partnow that the “Municipality would not arbitrate this as a violation of Article 5(2)(N).” (Tr. 510). Bennett concluded his testimony by testifying that the “only way” the Municipality would have been willing to arbitrate the grievance would have been for the APDEA to have waived its claims under the substantive provisions of Article V(2)(N). (Tr. 518-519). Udland, who received advice from Bennett during the early stages of the litigation, testified that 25 the Municipality would not arbitrate the contract under Article V(2)(N) “under any circumstances.” (Tr. 574). In any case, since the APDEA was unwilling to drop its substantive claims under Article V(2)(N), it continued its litigation attempting to force the Municipality to arbitrate the grievance. In December 1996, Bennett called Aitchison and offered to proceed to arbitration if the APDEA would drop its lawsuit seeking to compel arbitration. (Tr. 39). Aitchison asked Bennett the same question he asked Partnow — whether the Municipality would be willing to allow the APDEA to raise Article V(2)(N) in arbitration. (Tr. 47). Bennett agreed that the APDEA could “make whatever arguments they want to make, we make whatever arguments we want to make, and then dismiss the litigation.” (Tr. 492). The APDEA agreed to accept Bennett’s offer. The Municipality’s attempts to get the APDEA to waive the substantive provisions of Article V(2)(N) were not over, however. Initially, Bennett requested the opportunity to draft the settlement documents commemorating the agreement to submit the matter to arbitration and dismiss the lawsuit. (Tr. 49). When Bennett took no action on the matter, Aitchison began making phone calls and sending letters to Bennett, inquiring as to the status of the drafting of the agreement. Frustrated by the delay, Aitchison sent the Municipality a draft settlement agreement.19 The draft agreement contained no statement of the issue for arbitration, but referred to the fact that “all matters” would be referred to the arbitration process, and that the “time frames” for non-expedited arbitration would be used. APDEA Exhibit 20. Eventually, Mary Hughes, the Municipal Attorney for Anchorage, responded to Aitchison by faxing him a letter on April 18, 1997. In the body of the letter, the Municipality stated that it ___________________________________ 19At the time, Bennett was resigning as attorney for the Municipality. (Tr. 492). 26 was “willing to arbitrate under the terms of Article V, Section 2.A” of the contract. In a footnote in the letter, the Municipality was seeking the APDEA’s agreement that the arbitration would “not be governed by” Article V(2)(N). Most significantly, the Municipality proposed a “statement of the issue” for arbitration that provided that the sole issue before the arbitrator would be whether the change from 4/10’s to 5/8’s violated Article VII(l). APDEA Exhibit 22. This position in Hughes’ letter, which was in direct contradiction to the assurances given by Bennett to Aitchison in December 1996, was yet another statement by the Municipality that it would not proceed to arbitration if the APDEA insisted on the Arbitrator considering the substantive aspects of Article V(2)(N). (Tr. 53- 54). The same day Aitchison received Hughes’ letter, he responded with a letter stating that Article V(2)(N) should be added to the statement of the issues submitted to the arbitration. APDEA Exhibit 23. On April 27, 1997, Aitchison, Heun, Tiemey, Hughes and another attorney from the Municipal Attorney’s Office — Lynn Erwin — participated in a conference call. From the APDEA’s perspective, the purpose of the conference call was to get the parties “back on track” to arbitration. (‘Tr. 56). As Aitchison described: We either needed Article V(2)(N) in the statement of the issues, or we needed the statement of the issues not to be restricted to Article VII(1), so that it would be... the catchall statement of the issue, did the Municipality violate the contract without listing any particular sections. We needed to get that question resolved before we moved on to arbitration. (Tr. 57). In the conference call, Aitchison told the Municipality’s representatives that “we need to raise the substantive allegations in Article V(2)(N), otherwise we don’t have a deal.” (Tr. 58). In Aitchison’s judgment, “I made that just as clear as I could be.” (Tr. 58). Aitchison suggested that the parties use a generic statement of the issue worded along the lines of whether the Municipality violated the collective bargaining agreement in changing shifts. Such a statement of 27 the issue would include the ability of the APDEA to raise the substantive provisions of Article V(2)(N). (Tr. 58). The conference call culminated with an agreement that the parties would use the generic statement of the issue posed by Aitchison, one which would not be confined to any particular contract clause. (Tr. 57). Eventually, the Municipality executed the written submission agreement containing the final wording of the statement of the issue before the arbitrator.20 2. Argument Beyond a recitation of the facts, there is little that need to be said on this issue. Aitchison, Bennett and Udland, the only three witnesses to testify on the issue, all indicated that the Municipality would not agree to arbitrate the grievance under Article V92)(N). Other witnesses who could have been called to testify on the issue -- Partnow, Tierney, Hughes, Erwin, and other Municipality representatives -- were not produced by the Municipality. The Arbitrator’s question was answered with the uniformity of a Greek Chorus, and answered in a way that there exists no basis to modify in any fashion the appropriate remedy based upon the APDEA’s decision not to forgo claims under Article V(2)(V) in August 1994. C. The APDEA’s Decision to Withdraw The Workweek Issue From Negotiations For The 1995-1998 Contract Was Based On A Mutual Understanding That Would Make It Inequitable To Terminate The Backpay Award At That Point In Time. The third questions raised by this Arbitrator was whether the APDEA’s decision to withdraw the workweek issue from negotiations for the 1995-1998 contract was based on a ______________________________ 20 There is at least the possibility that the Municipality’s efforts to get the APDEA to eschew reliance on Article V(2)(N) did not end with the conference call. Erwin followed up the conference call with a draft statement of the issue that asked whether the collective bargaining agreement permitted the Municipality to change from 4/10’s to 5/8’s. APDEA Exhibit 26. Aitchison, concerned that the use of the word “permit” in the statement of the issue could put the parties “right back into the Municipality’s belief that.. . Article V(1) contained a waiver of the APDEA bargaining rights that gave it the affirmative ability to make this shift change,” insisted that the statement of the issue be phrased in terms of whether the Municipality violated the contract in making the shift change. APDEA Exhibit 27. 28 mutual understanding that would make it inequitable to terminate the backpay award at that point in time. This question was in response to the Municipality’s argument made subsequent to the hearing on the merits that something that transpired during the 1994-1995 negotiations prevented the APDEA from seeking a full monetary remedy in these proceedings.21 The evidence before the arbitrator now shows, again without contradiction, that in the 1994-1995 negotiations, the parties were in agreement that all issues arising out of the grievance would be handled in these proceedings, and that the parties specifically agreed that the 1994-1995 negotiations would not impact in any way the ability of either party to make any arguments in these proceedings, including arguments on the issue of an appropriate remedy. 1. The Facts. The 1994-1995 negotiations began in October 1994, shortly after the Municipality implemented the change to 5/8 shifts. (Tr. 72). In the negotiations, the APDEA submitted a proposal that all employees should be placed on 4/10 shifts. (Tr. 72). The APDEA’s proposal was a reprise of several similar proposals it had submitted in prior negotiations, and was an attempt to contractually “bar” the Municipality from even raising the issue of a shift change during the term of the contract. (Tr. 72). The Municipality responded with a proposal that the then-current contract language be maintained. (Tr. 73). The initial phases of the negotiations were handled for the APDEA by attorney Jaime Goldberg. (Tr. 344). In November, 1994, Aitchison replaced Goldberg, and began discussions with Bennett, the Municipality’s chief spokesperson, as to “what the real issues were and what _______________________ 21The Municipality’s argument has never been that the events in the 1994-1995 negotiations deprive the Arbitrator of all authority to issue a monetary remedy; instead, the argument seems to be that the monetary remedy 29 the real issues weren’t in the bargaining.” (Tr. 74). In the discussions between Bennett and Aitchison, an agreement was reached that both the Municipality and the APDEA would allow the issue of the work shift to be resolved through the then-pending litigation process that culminated with this arbitration hearing. Tr. 75-76. Aitchison explained his rationale for the agreement with Bennett as follows: “There was an agreement that we would — both sides would withdraw their proposals for Article VII(l). The Municipality in current contract language was telling us in bargaining, we think current contract language includes a waiver which includes a right for us to change from 4/10s to 5/8s. Both sides would withdraw their proposals and what they were saying in bargaining and all that sort of stuff, and we would let the issue be resolved in litigation.... “Q. [By Mr. Brown] Why didn’t you proceed in 1994 with this issue given the pending litigation? Why didn’t the Association proceed to fact finding and interest arbitration? “A. Well, a couple of reasons. The main one was that I thought that the APDEA had an excellent case on the merits in these proceedings that we’re in right now; that the Municipality violated the contract by changing the shifts without bargaining. And from a strategic standpoint, it seemed to me much better for the APDEA to proceed to arbitration on this grievance if the Municipality was willing to let us, which it was. That wasn’t an issue. I mean, proceed to arbitration. If we could wrap it all up in the litigation, which the Municipality was willing to do, it seemed to me to be far more advantageous to the APDEA to do that and resolve the 4/10 issue as the sole issue in an arbitration rather than binding it up with one or two or 10 or potentially scores of other issues in an interest arbitration where it might more likely get lost or be the product of compromise. I mean, that was one reason why I thought that it would be better for the APDEA to resolve the issue in these proceedings. “The second was just solely a political concern. I knew that the APDEA could never give away 4/10s in those negotiations. We could not go back to our membership and get a ratified settlement if we did anything to alter the 4/10s lawsuit or if we did anything to alter our claims that patrol officers had the right to 4/10s This was the most important issue multiplied by 10 by APDEA members. ______________________________________________________________________________ should end in November 1995, when the collective bargaining agreement produced by the negotiations was ratified by the APDEA. (See Municipality’s Brief on Remedy at pp. 27-28, dated September 15, 1998). 30 “I knew that Rick Mystrom, the mayor of Anchorage, could never agree to a settlement that reinstated 4/10s So politically, if we were going to get a settlement, the 4/10 issue would have to be off the table. That’s why this whole solution of let’s let the litigation run its course and whatever happens there, happens there, was a good solution, not just from the APDEA’s standpoint, but I think from the Municipality’s standpoint.” (Tr. 76-78). Bennett agreed completely with Aitchison that the agreement to remove the work shift issue from the negotiations in no way prejudiced either party from raising any argument in this grievance: “If we were going to get a contract — we wouldn’t get a contract if that hung up. So we agreed that it would — we set it aside, we would let the process, i.e., the litigation, grievance and so on, that process resolve the issue. And no party would lose anything; no party would gain anything by virtue of setting it aside. Whatever the history was and whatever rights we bad, we kept. We didn’t lose anything on either side by agreeing to do this. And that’s what we did. “Q. [By Mr. Reynvaan] Did the union waive any of its rights - “A. Not at all. “Q. — those issues from bargaining, in your view? “A. Not at all.” (Tr. 499-500). Two other witnesses testified as to the circumstances under which the work shift issue was removed from the bargaining table. Marton, who was a representative on the Municipality’s bargaining team, had a foggy memory on the point, but believed that the parties agreed that the dispute “was going to be handled in the litigation. The issue was essentially just not going to be addressed at the table.” (Tr. 271). Heun, a member of the APDEA’s bargaining team, testified that Aitchison related to him that the matter was removed from the bargaining table and that the underlying issues would be handled through the pending litigation. (Tr. 347). 31 Following the agreement between Aitchison and Bennett, the issue of work shifts was removed from the bargaining table by both sides. (Tr. 84.) The contract was eventually settled, and was ratified in November 1995. (Tr. 86). 2. Argument. The Municipality’s argument was entirely premised on the notion that the APDEA should have pursued the 4/10 issue in the negotiations, and that its failure to do so precludes it from seeking a complete monetary remedy. As the Municipality’s argument went, by settling the contract without resolving the 4/10 issue, the APDEA waived its right to claim further monetary relief. (See Municipality’s Remedy Brief pp. 27-29). Significantly, Aitchison and Bennett, the lead negotiators for both the APDEA and the Municipality agreed that the APDEA waived absolutely no arguments by not further pursuing the 4/10 issue in the 1994-1995 negotiations. Both individuals testified that the 4/10 issue was withdrawn from the table only by mutual agreement, and that the terms of the agreement allowed both parties to fully preserve all arguments they had in the underlying dispute prior to the commencement of negotiations. Fundamental contract interpretation principles require that waivers of rights be knowledgeable, clear, and unmistakable. (See authority previously cited in Closing Argument Brief of Association May 26, 1998 at p. 11). The Municipality’s implied waiver argument fails all of these tests. Moreover, it flies in the face of the shared understanding of the Municipality and the APDEA of the importance of the 4/10 issue to the APDEA. Both Heun and Aitchison testified that the successful resolution of the 4/10 issue was of the utmost importance to the APDEA; the testimony of Udland, Zager, and Bennett echoes that theme. Only two months after a shift change that created an incredible dissension and uproar among its membership, it defies 32 logic to believe that APDEA would voluntarily waive the right to all future monetary remedies in the case, and would do so without any quid pro quo whatsoever. Had the Municipality intended for the APDEA to waive any claim for monetary relief through the agreement which concluded the 1994-1995 negotiations, it was incumbent upon the Municipality to tell the APDEA precisely that. Good faith negotiations should not be an effort to play “hide the ball;” if a party intends that an agreement have a substantive impact, it should disclose that impact to the other party. It is telling that the Municipality made no statement during the 1994- 1995 negotiations that by agreeing to have this matter resolved in these proceedings, the APDEA was agreeing to waive otherwise appropriate remedies. Further, the legal authority cited by the Municipality in its earlier briefs for its position that the 1994-1995 negotiations somehow absolves it of its backpay obligation is not on point. As noted in the APDEA’s Reply Brief on Remedy at pp. 39-40, the two NLRB cases cited by the Municipality in support of this argument do not, in fact, bolster the Municipality’s position. When the lead negotiators for both sides agree that the APDEA preserved all claims it originally had in these proceedings, and when they are in agreement that the resolution of the 1994-1995 negotiations entailed no waiver of any of the APDEA’s rights to seek an appropriate remedy in this case, the inquiry must stop. 3. Nothing In The Conduct Of The Litigation Over The 4-10 Lawsuits Precludes A Full Remedy In This Matter. Though the Municipality produced no witnesses on the issue, the bulk of exhibits it submitted on how the 4-10 litigation was conducted leads to an inference that it may argue that the APDEA was dilatory in pursuing the litigation, and that the Arbitrator’s award should 33 somehow be limited for those purposes. The uncontradicted evidence prohibits such a conclusion. Aitchison testified at some length as to how the litigation of the 4-10 cases progressed. Aitchison indicated that the suits to compel the Municipality to proceed to arbitration on the 4-10 grievances proceeded fairly normally for some time. (Tr. 102.) For a period of time, the cases were put on hold while Heun attempted to negotiate a resolution of the issues with the Municipality. In particular, Heun met with Tierney to present a variety of different schedules, including 12 and 11- hour shifts, to show the Municipality how shifts other than the 5/8 met the Municipality’s operating needs. (Tr. 103). Eventually, it became clear that Heun’s efforts to negotiate a resolution of the cases were unsuccessful. At the same time, the APDEA received a conditional notice of dismissal from the court hearing the main 4/10 lawsuit. The conditional notice of dismissal required the APDEA to process the litigation through filing some pleading in the next 30 days. (Tr. 103). Aitchison responded by preparing and filing a summary judgment motion which would have completely disposed of the litigation. Bennett rejoined by filing a cross motion for summary judgment. While both motions were pending, the court dismissed the case without prejudice. (Tr. 104). The APDEA promptly refiled the lawsuit, and the APDEA and the Municipality refiled the same motions for summary judgment. These filings placed the underlying litigation in the same posture it bad been before the dismissal process started, with the only delay in the proceedings being a couple of months. (Tr. 104). Two other things of note occurred during the litigation of the main 4/10 case. First, the APDEA was simultaneously litigating the four “subsidiary 4/10 cases,” all of which involved the Municipality’s refusal to process to arbitration other grievances arising out of the change from 4/10’s to 5/8’s. (Tr. 104). The APDEA was proceeding through the summary judgment process 34 on all of the cases. By December 1996, when all of the cases were settled, three of the cases were already at the Supreme Court level awaiting disposition. (Tr. 104). The second thing of note which occurred during the litigation was that the Municipality was responding in an untimely fashion throughout the process. In Aitchison’s words, dealing with the Municipality on the litigation was “horrific. Getting the Municipality to do anything in a timely fashion has been — I don’t know. I don’t think I have ever quite experienced it on a case the way l have on this.” (Tr. 105). Aitchison described what he believed was the root of this difficulty: Part of it is, as I mentioned earlier, you know, 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 APD, six different people from the Hill Building or six different people from the Municipality’s labor relations office. That’s kind of a way of putting it And these people have had different temperaments and different approaches, and it’s ranged from absolute complete dilatory tactics to ignoring letter after letter, ignoring phone call after phone call. It’s pretty frustrating. At one point the Municipality even had the person in charge of labor relations sending me letters refusing to recognize [the] validity of a fax document saying that if a document was faxed it was not valid; it had to be delivered by mail. So it’s just been frustrating throughout the entire process. (Tr. 105-106). The Municipality’s approach to the litigation produced correspondence from the APDEA demanding that the Municipality participate in the discovery process, APDEA Exhibits 14, 15, and 16, and a motion to compel discovery filed in court by the APDEA. APDEA Exhibit 17.22 And, once the litigation was settled on the basis of the Municipality agreeing to arbitrate the grievance, the APDEA once again encountered significant Municipality-caused delays. ___________________________ 22 Even when it “complied” with the discovery request, the Municipality only produced 10-20 documents, far short of the number of documents it has introduced into evidence in these proceedings which would have clearly fallen within the scope of the discovery request. (Tr. 719). 35 The first six months after the settlement was reached were consumed with the APDEA trying to get the Municipality to execute a settlement agreement memorializing the terms of the withdrawal of the litigation and the submission of this matter to arbitration. In that period, the Municipality initially failed to prepare the settlement agreement it had requested the opportunity to prepare — a delay Bennett explained as being due to a change in lawyers for the Municipality. (Tr. 492-493). Then, with new lawyers on the scene, the Municipality spent several months in an eventually fruitless effort to get the APDEA to eschew reliance on Article V(2)(N) in these proceedings. (Tr. 108-109). And even after the Municipality relented and agreed to submit the matter to arbitration under the same terms proposed by Bennett in December 1996, the delay in the process continued. On one occasion, the Municipality changed its mind on the selection of the arbitrator in this matter only to have to be sternly reminded of what it had agreed to by the APDEA, see APDEA Exhibit 36. All the while the Municipality’s delay was evidenced by conduct such as falling to return over 10 phone calls in a row made by Aitchison’s office to the Municipality’s labor relations representative. (Tr. 112). Significantly, though the Municipality produced Bennett as a witness — the one witness in the best position to testify either that Aitchison’s recounting of the course of the litigation was wrong or that the APDEA’s handling of the litigation was somehow dilatory — it failed to ask him any pertinent questions on the subject of the course of litigation. Under these circumstances, it is appropriate to conclude that, had the Municipality asked Bennett questions as to whether the APDEA’s conduct under all of the circumstances was dilatory, his answers would have been unfavorable to the Municipality. 36 4. Conclusion. The APDEA’s decision to withdraw the workweek issue from negotiations for the 1995- 1998 contract was based on a mutual understanding that would make it inequitable to terminate the backpay award at that point in time. III. THE APPROPRIATE REMEDY FOR THE MUNICIPALITY’S CONTRACT VIOLATION A. Introduction. The fourth question posed by the Arbitrator asked the parties to address the appropriate method of calculating damages. The APDEA is suggesting a three-part approach to the question of the appropriate remedy. First, the Arbitrator should award a monetary remedy to compensate impacted employees for the fact that they were required to work on what would have been their regular day off. Second, the Arbitrator should require the Municipality to reimburse employees for overtime lost as a result of the shift change. Third, the Arbitrator should award such further relief as she may deem appropriate to compensate APDEA members for the ancillary harm done to them as a result of the Municipality’s violation of the contract. Each of these issues will be treated separately below. B. This Arbitrator Should Require the Municipality to Pay All Impacted Employees The Equivalent of Four Straight-Time Hours of Compensation for Every Week During Which the Employee Worked on the Fifth Work Day of a 5/8 Shift. The payment to employees for the days off they lost each week as a result of the Municipality’s contract violation is a necessary part of a make-whole remedy. Viewed within the structure of the contract, employees were working outside of what should have been their 37 regularly scheduled shift, work that entitles them to overtime compensation. Further, even were the contract completely silent on the point, the normal make-whole remedy in cases where an employer has improperly changed an employee’s shift is to compensate an employee at the overtime rate for the time worked outside of the hours that would normally comprise the employee’s shift. Interestingly, the Municipality spent no time at the hearing discussing this first portion of’ the APDEA’s proposed remedy — that employees receive overtime compensation for their fifth work day under the 5/8 schedule. Not one witness for the Municipality testified on the appropriateness of the remedy, nor did any witness rebut that APDEA members had, in fact, been required to work on what would have been their days off. 1. The Facts. Employees working a 4/10 shift have 156 days off per year; employees working a 5/8 shift have 104 days off per year. Simple math produces the result that the shift from a 4/10 to a 5/8 schedule results in 52 lost days off per year. However, under Article XII(6) of the collective bargaining agreement, employees must use seven days of accrued vacation leave each full calendar year. Thus, APDEA members impacted by the Municipality’s decision to change shifts lost a maximum of 51 days off per year. This loss of days off was well known to the Municipality prior to its implementation of the shift change. Captain Zager put the matter bluntly in a memorandum on July 18, 1994, when he stated that”. . . the proof of 5/8’s increasing ‘manpower’ is found in basic mathematics. Who can defeat the statement that an employee would be available more work days per year if you 38 increase his/her work week from 4 days to 5.”23 APDEA Exhibit 80, at 2 (emphasis in original). When Deputy Chief Udland wrote a memorandum to Operations Manager Vakalis describing the proposed shift change on July 28, 1994, he was just as blunt about the loss of days off, remarking “when working 5 eight’s, you are on duty 5/7ths of the week, as opposed to 4/7ths of the week on a 4 ten hour shifts (sic).” APDEA Exhibit 85. Certainly the most obvious presentation of the issue can be found in the memorandum Captain Zager and Deputy Chief Udland wrote to the file on August 26, 1994, six days before the implementation of the shift change. The memorandum made clear that substantial motivating factors in the shift change, and in the Municipality electing to not avert the harm to APDEA members, were a combination of political considerations and the belief that the 4/10 shift was “generous”: “A Successful TRO would Unnecessarily Jeopardize the Community’s View/Confidence of the Mayor and Police Chief: The community was given a promise by the Mayor: On September 1, 1994, the citizens of Anchorage would enjoy substantially increased police presence, and at a savings of $400,000.00 per year. If the Anchorage Police Department Employee’s Association can stand between the citizens and those benefits — if 250,000 citizens can be deprived of those benefits so that 170 police employees can preserve their generous three day weekend — the Mayor and Police Chief will appear helpless to govern, and may not ever have their well-earned respect and confidence restored.”24 APDEA Exhibit 87, at 2. ________________________ 23The APDEA has never understood the Municipality’s math on the issue of the staffing implications of the shift change. To the APDEA, 5 x 8 has always equaled 4 x 10, with each employee working 40 hours per week under either schedule. If the problem was the shift overlap on the 4/10 schedule, that matter could have easily been solved by eliminating the overlap through additional starting times for the shift. The Municipality’s approach to math notwithstanding, it is abundantly clear that the Municipality understood that the shift change would result in the loss of days off, and that it viewed the loss of the days off as inuring to its significant benefit. 24 In fact, not a single additional work hour was gained through the change to the 5/8 shift, the Municipality now claims that it saved no overtime as a result of the shift change, the Municipality now admits that it could have achieved all of the operational results it wanted through a change in “policy,” (Tr. 608), and the restoration of the 4/10 shift after this Arbitrator’s interim award seems not to have led to a diminution of the ability of the Mayor and the Police Chief to “govern.” 39 2. Argument. The APDEA has previously extensively briefed the issue of the appropriate remedy in unilateral change cases involving hours of work. As discussed on pages 11-20 in the Remedy Brief of the Association, there are two schools of thought as to what remedy should apply in such circumstances. The first line of cases holds that employees should be compensated at the overtime rate for all hours worked on what would have been their normal time off in addition to whatever compensation they previously received for the work. Most notably, such a remedy was ordered by an arbitrator in a case involving the Municipality and the International Brotherhood of Electrical Workers in a strikingly similar case. APDEA Exhibit 100. The second line of cases holds that employees should be compensated at the overtime rate for all hours worked on what would have been their normal time off, with the employer allowed an offset for the compensation already paid the employees for the work. It is this second, less generous remedy that the APDEA is seeking. Without repeating arguments it has previously made, the APDEA believes that the first portion of the appropriate make-whole under the circumstances is to require the Municipality to compensate such employees for the work on their days off at the overtime rate. 25 That said, the precise wording of the first portion of the APDEA’s requested remedy must involve careful phrasing. Among the principles that remedy must take into account are the following: __________________________ 25 For a brief time, the Municipality seemed to be arguing through Maus, its expert witness, that employees should not be compensated at the overtime rate for their fifth day of work because “the vast majority of the people” were working a fifth day under the 4/10 schedule. (Tr. 666). On cross-examination, however, Maus admitted that “I inadvertently probably threw that one in, “that he examined “very, very few” pay sheets in attempting to identify pre- change fifth day work, that there were no payroll codes that would allow the identification of fifth day work, and that the review of the limited number of pay slips to which he had access would not be “sufficient to render an opinion as to whether or not the majority of the overtime of this case was fifth-day overtime.” (Tr. 690-692). 40 1. As a baseline proposition, employees should have received compensation for work on their “Friday” — i.e., work on the fifth day of their work schedule under the 5/8 schedule — at the time and one-half rate, since the work was on what should have been their days off. In fact, they received compensation at the straight-time rate for such work. Accordingly, the employees are entitled to an additional half-time compensation for each of the eight hours of work on the fifth day of their schedule. Put in slightly simpler terms, employees should be entitled to four hours of compensation at the straight time rate. 2. The compensation should be paid to employees at the “regular rate of pay,” the term used by the Fair Labor Standards Act to describe remuneration for employment. See 29 U.S.C. §207(a)(e). 3. Employees should only receive such compensation for workweeks in which they actually worked on the fifth day of their work schedule. In other words, if the employee used paid leave or was off work for other reasons on the fifth day of their work schedule, the employee should not receive the additional compensation for that week. 4. The Municipality should be entitled to an offset for hours worked by employees under the 5/8 shift for which they received overtime compensation, but for which they would have not been entitled to receive overtime compensation under the 4/10 shift. This offset would only involve work performed during the 9th and 10th hours on a 5/8 shift — such time would have been overtime under the 5/8 shift, but only straight time under the 4/10 shift. Since employees received an additional half- hour of compensation for such hours under the 5/8 shift, 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.26 In sum, by way of compensation for the lost days off of APDEA members, the Arbitrator should issue the following award: The Municipality shall pay each patrol officer and sergeant who worked in patrol or traffic functions at any point between September 1, 1994 and September 1, 1998, compensation of four hours per week worked in a patrol or traffic function. Such payment shall only be made for work 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. __________________________ 26 The calculation basis for the APDEA’s proposed remedy is described in detail on pages 93 through 99 of the transcript. 41 The Municipality shall be entitled to offset the payments to an employee described in the preceding paragraph if, at any time during the period between September 1, 1994 and September 1, 1998, the employee received overtime compensation for working during the ninth and tenth hours of the employee’s work day on a 518 shift. The hours worked during the ninth and tenth hours of the employee’s work day on a 5/8 shift for which the employee received overtime compensation between September 1, 1994 and September 1, 1998 shall be referred to as “qualifying hours.” The amount of 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. C. The Arbitrator Should Consider Awarding the APDEA an Additional Remedy that Includes the Overtime Compensation Lost by APDEA Members as a Result of the Shift Change. The APDEA came into the arbitration hearing frankly doubting whether any overtime savings in fact resulted from the shift change. The Municipality, which came into the hearing having consistently and repeatedly claimed that it saved at least $400,000 per year in overtime costs as a result of the shift change, focused all of its efforts at the hearing to show that everything it had told the APDEA, the courts, and the public before was incorrect, and that it in fact saved no overtime costs by changing from the 4/10 to the 5/8 shift. The Municipality’s abrupt about-face on the question of overtime savings, no matter how surprising, might have ended the issue had the Municipality begun to put on a convincing case that no overtime savings resulted from the shift change. However, as will be shown below, the Municipality’s case on this point was weak at best, and leaves the Arbitrator with the difficult task of reconciling numerous consistent, specific statements about the overtime savings which have been made by representatives of the Municipality in the past with the inadequate proof adduced at the remedial hearing that no such savings were in fact realized. 42 1. The Facts. Rather than set forth a narrative statement of the facts relevant to the issue of overtime savings, the APDEA has prepared the following table which summarizes the evidence. Date Person Statement Forum July Zager “As described, 5/8’s will eliminate the extra pay over holidays, Memo to Chief of 18, demonstrated above at about $70,000 per year... On July 14, Police. APDEA 1994 1994, our Payroll Section hand-counted the call-in overtime for Exhibit 79 Patrol for the period of January 1, 1994, to July 10, 1994 revealing $253,912.00 was paid for this time of overtime exclusively. Projected over a full year period, that amount would rise to $575,640.” Note: At the hearing before this Arbitrator, Zager testified that the overtime savings he identified in this memorandum were a “hypothetical conclusion.” (Tr. 608). July Zager “Finally, with the money saved on call-in overtime and holiday Memo to Chief of 18, pay, the department would be in a better position to pay such ad Police. APDEA 1994 hoc costs.” Lists “gross savings” in overtime at $575,640, and Exhibit 79. “net savings” of moving to 5/8 shift of $433,849. Note: At the hearing before this Arbitrator, Zager testified that the overtime savings he identified in this memorandum were a “hypothetical conclusion.” (Tr. 608) July Udland “Some of the benefits of 5 eight hour shifts versus 4 tens are Memo to George 28, listed below . . . Vakalis, 1994 Operations • Eliminates most patrol overtime call in for staffing of patrol Manager, APDEA area. This currently is costing us about $575,000 per year. Exhibit 84 • The first year of actual savings is projected to be at least $400,000, even allowing for some overtime, one more day of travel in vehicles, and other associated costs.” July Tierney “As you know, we have carefully reviewed the present staffing Letter to Rob 28, levels and costs of the 4/10s schedule with projected staffing Heun refusing to 1994 levels and costs of a 5/8s schedule. The results are clear. We can bargain over put more police officers on the street and for much less cost APDEA Exhibit under the later schedule.” 85. 43 Date Person Statement Forum July Anch. “[Mayor] Mystrom said the move is equal to hiring 52 trained News article on 29, Daily officers, a 25 percent jump in the current size of the patrol force Mayor’s 1994 News — except that instead of costing taxpayers %5.2 million, it will announcement of decrease overtime costs by as much as $400,000.” intended change in shifts. APDEA Exhibit 88. August Wray “Considering the above categories, a prudent fact to address is Memo to Stan 9, Kinard, the possible savings of $400,000 in overtime dollars during 1995 Palco, Budget 1994 Pers. Dir., when the shifts change from “four day-ten hours” to five day- Analyst, setting APD eight hours.” For budget purposes, the savings should not be forth how the subtracted from the current overtime budget of $1,701,340 $400,000 because it is an unrealistic figure; rather, it should be subtracted overtime savings from the more accurate figure of $2,215,144.” should be budgeted. August Udland “A successful TRO would unnecessarily jeopardize the Memo to file on 26, and Zager community’s view/confidence of the Mayor and Police Chief. the harm that 1994 The community was given a promise by the Mayor: On would result if a September 1, 1994, the citizens of Anchorage would enjoy TRO blocked the substantially increased police presence, and at a savings of implementation of $400,000 per year. If the [APDEA] can stand between the the 5/8 shift. citizens and those benefits - if 250,000 citizens can be deprived APDEA Exhibit of those benefits so that 170 police employees can preserve their 87. generous three-day weekend - the Mayor and Police Chief will appear helpless to govern, and may not ever have their well- earned respect and confidence restored.” August Bennett “The change will also realize a net reduction in overtime and Opposition to 26, other premium pay costs by approximately $400,000 per year.” motion for TRO 1994 APDEA Exhibit 97. August Zager “Changing to a five/eights schedule directly and functionally Affidavit 30, increases per-day staffing by 25% and reduced potential overtime submitted in 1994 expenses and other premium pay costs by an estimated $600,000 Superior Court in per year. The overall cost savings, taking into account added APDEA’s suit to costs, such as meal allowance, home car expense, dry cleaning compel expenses and end-of-shift overtime, will approximately arbitration. $400,000 plus.” APDEA Exhibit 123, at 2. Note: at the hearing before this Arbitrator, Zager testified that this affidavit was “subject to the same limitations” as his July 18 memoranda. (Tr. 611). Sept. Zager “The five day work week itself has achieved its predicted staffing Memo to Heun. 28, numbers and overtime savings.” (emphasis added) APDEA Exhibit 91. Note: at the hearing before this Arbitrator, Zager testified that the overtime savings he identified in this memorandum were a “projection based on the original hypothetical,” and that he “didn’t make any measurements.” (Tr. 612). 44 Date Person Statement Forum Oct. Zager “As my original affidavit indicated, APD anticipated that Supplemental 12, adoption of the five/eights work schedule would lead to increased Affidavit 1994 staffing per day and a significant reduction in overtime and submitted premium pay expenses as compared to the four/tens schedule Superior then in effect. Both of these expectations have been realized ... APDEA’s suit to The adoption of the five/eights work schedule by itself has compel saved hundreds of thousands of dollars and increased police arbitration. presence in the field as compared to the four/tens schedule then APDEA Exhibit in effect.” (emphasis added) 124, at 1-2. Note: At the hearing before this Arbitrator, Zager testified that he did not “conduct any new analysis,” that his affidavit was “a projection with no analysis,” that at no time did he attempt “to measure any actual effect of the schedule change on overtime hours or dollars,” and that he didn’t “have a clue how much money has or had not be saved.” (Tr. 613, 643). August Jerry “When APD went to the new shift and we put more officers on Municipal Audit 27, Anderson the street, we realized a savings in overtime and more officers Committee 1996 were on the street.” Meeting. APDEA Exhibit 90. Compensation for the overtime savings claimed by the Municipality is distinct from the remedy of compensating employees for the time worked on what should have been their day off. The “overtime savings” overtime was a structural artifact of the way the Municipality arranged the 4/10 shift. Tr. 91. The overtime was caused by the existence of an “overlap” period when more than one shift of employees was working at the same time. Tr. 91. In the Municipality’s view, this overlap led to a high level of “call in” overtime, where employees were called in early to report for work. APDEA Exhibits 79, 80. 2. Argument. As a preliminary note, the Municipality’s treatment of the issue of overtime savings arising from the change from 4/10’s to 5/8’s is difficult to countenance in the context of a collective bargaining relationship. The Municipality was well aware that changing from 4/10’s would cause hardship for APDEA members, and that the new shift would be a “major, disruptive 45 change.” See APDEA Exhibit 79, at 5. In words penned by Zager before the change was implemented, “to lose [the 4/10’s] would have an equally profound effect on morale — especially when the loss is for things as administratively oriented as financial and staffing needs, and especially since it disrupts something as fundamental as one’s work week.” APDEA Exhibit 80, at 7 (emphasis in original). In spite of this knowledge, and in spite of a consistent practice stretching twenty years into the past, the Municipality unilaterally changed the work shifts of employees, doing so in substantial measure because of the financial “savings” in the form of reduced overtime expenses achieved by those changes. All documents in the record evidencing why the Municipality changed work shifts — whether those documents be memoranda from APD, from the Municipality itself or reports of press conferences given by the Mayor — stress that the reality of overtime savings was an important aspect of the Municipality’s decision to change shifts. And, in measuring the “savings,” the Municipality appears to have relied exclusively on the calculations performed by Zager. On July 18, 1994, Zager stated that “combined with the holiday overtime savings, 5/8’s would — not “might” or “could” — save $645,000 per year. . .“ APDEA Exhibit 79, at 5. On August 26, 1994, Zager stated that “on September 1, 1994, the citizens of Anchorage would enjoy substantially increased police presence, and at a savings of $400,000.00 per year.” (emphasis added). APDEA Exhibit 87, at 2. In an Affidavit on August 30, 1994, Zager testified that “Changing to a five/eights schedule directly and functionally increases per-day staffing by 25% and reduces potential overtime expenses and other premium pay costs by an estimated $600,000 per year.” APDEA Exhibit 123, at 2. On September 28, 1994, Zager wrote that “the five day work week itself has achieved its predicted staffing number and overtime savings.” 46 (emphasis added). APDEA Exhibit 91, at 1. And, more than a year after the change was implemented, Zager, who understood that it was important not to “mislead” a court or to “say anything that might be misconstrued” in an Affidavit (Tr. 641), testified in a separate Affidavit that “As my original affidavit indicated, APD anticipated that adoption of the five/eights work schedule would lead to increased staffing per day and a significant reduction in overtime and premium pay expenses as compared to the four/tens schedule then in effect. Both of these expectations have been realized. . . (The adoption of the five/eights work schedule by itself has saved hundreds of thousands of dollars . . .“ (emphasis added). (APDEA Exhibit 124, at 1-2). And yet now the Municipality is attempting to convince this Arbitrator that no overtime savings whatsoever resulted from the change from 4/10’s to 5/8’s. Zager testified here that he had never conducted any analysis, prospective or retrospective, on whether the shift change saved money. (Tr. 642). In a statement seemingly contrary to the forceful, direct statements in his affidavits, here he testified: “I don’t have a clue how much money has or has not been saved,” (Tr. 643), and that he simply did not know whether the statements in his affidavits were true. (Tr. 644). Ron Mans, the Municipality’s expert witness on the impact of the shift change on overtime, while pointedly refraining from saying that the change in the shift schedule did not produce overtime savings (Tr. 688), did conclude that such was the “inclination of the evidence.” (Tr. 688-689). Maus’ testimony was, bluntly, that it was highly unconvincing. The heart of Maus’ testimony was his argument that policy changes in APD which predated the shift change by one month produced overtime savings, not the shift change itself. Maus based this conclusion on his analysis of the pattern of overtime costs in August 1994, the month after the policy changes and before the shift change. However, absent from Maus’ analysis was the consideration 47 of any of a variety of factors that impact law enforcement overtime expenses — factors such as law enforcement operational needs, crime rates, the existence or non-existence of directed overtime patrols, and the fact that overtime expenses in APD have a tendency to drop in the month of August. (Tr. 699-702). The unrebutted evidence submitted by the APDEA was that without taking such factors in consideration, it is impossible to isolate either the policy changes or the shift change as a cause in the reduction or increase in overtime expenses. (Tr. 703). When all is said and done, the Arbitrator is left with consistent and repeated statements by the Municipality that it would save and did in fact save $400,000 in overtime as a result of the shift change, and no convincing evidence to the contrary. Lost overtime that was a structural artifact of the 4/10 shift is clearly another area of economic loss to impacted APDEA members. Under the circumstances, the Arbitrator should award an additional remedy making APDEA members whole for the lost overtime. D. The Arbitrator Should Consider Awarding the APDEA Additional Relief. The APDEA is also requesting that the Arbitrator consider awarding it additional relief beyond compensation for the lost days off of APDEA members and the overtime savings reaped by the Municipality. Employees were harmed in a number of ancillary areas, including: 1. Some employees were required to alter child care arrangements (Fr. 92); 2. Some employees were required to change pre-planned vacations (Tr. 92); 3. Some employees with spouses were required to make changes in working hours, or their spouses were required to change work hours, in order to accommodate the new schedule (Tr. 92); 4. Some employees were required to change college schedules (Tr. 93); and 48 5. All employees working the 4/10 shift immediately lost one day off each week, roughly fifty weeks a year, and for approximately four years.27 The Municipality made no attempt to rebut any of the evidence submitted by the APDEA on the ancillary harm suffered by employees as a result of the shift change. Moreover, it is important to consider in this regard that the APDEA strongly urged the Municipality not to implement the shift change from the moment it learned of the Municipality’s intentions. It attempted to bargain with the Municipality, to cajole the Municipality, and eventually to compel the Municipality to bargain over the matter and to return employees to the shift which had been in place for twenty years. That the Municipality consistently rebuffed all these efforts is an appropriate factor to take into consideration in the formulation of the third portion of the remedy requested by the APDEA. There are a variety of remedies which would appropriately suit this third claim for relief. For instance an award of additional monetary damages or the payment of prejudgment interest on a total remedy award. This would certainly fall within the array of remedies that would fit the Municipality’s contract violation and are clearly within the arbitrator’s broad discretionary authority. This has been a complicated, arduous case which has placed the Arbitrator squarely into the midst of the most serious dispute which has ever existed between the APDEA and the Municipality. The Arbitrator is well aware of the impact of the shift change on APDEA ___________________________ 27For a brief time, the Municipality seemed to imply through the testimony of Maus that employees hired after September 1. 1994, should not be entitled to any damages. Though the Municipality itself has never actually made such an argument, should it raise the contention in its brief, the Arbitrator should reject it. Patrol employees hired after September 1, 1994 should have been working the 4/10 but for the Municipality’s contract violation. They have been just as harmed as the employees who were working in patrol functions on September 1. 1994, albeit for a lesser amount of time. 49 members, and of the approach to the litigation of this matter taken by the Municipality. The APDEA believes that the Arbitrator is well-positioned to choose what remedy, if any additional, is appropriate in this third area of the remedy requested by the APDEA. IV. CONCLUSION The Arbitrator should require the Municipality to compensate adversely impacted employees at the overtime rate for all hours worked on their fifth day of work under the 5/8 shift. In addition, the Arbitrator should require the Municipality to make employees whole for lost overtime resulting from the shift change. Finally, the Arbitrator should consider formulating an additional remedy to compensate employees for the negative impacts of the shift change in the lives of the impacted officers. Respectfully submitted this 22nd day of June, 1999. DILLON & FINDLEY, P.C. Attorneys for Grievant Anchorage Police Department Employees Association Original Signed by: Ray R. Brown 50 CERTIFICATE OF SERVICE The undersigned hereby certifies that on the 22nd day of June, 1999, a true and correct copy of the foregoing document was served by: [ ] facsimile [ X] hand delivery [ ] first class mail on the following attorney(s) of record: Thomas M. Daniel Perkins Cole 1029W. 3rd Ave., Suite 300 Anchorage, AK 99501 Original signed by: Lisa Kusmider 51