IN ARBITRATION ANCHORAGE POLICE DEPARTMENT ) EMPLOYEES ASSOCIATION, ) Grievant, ) v. ) MUNICIPALITY OF ANCHORAGE, ) Respondent ) AAA Case No.7 L 390 00142 97 ________________________________________ ) REMEDY REPLY BRIEF OF APDEA FOLLOWING MARCH 15-17, 1999, REMEDY HEARING A. Introduction. Significant facts not addressed by the Municipality in its Reply Brief include: The Municipality’s own witnesses conceding that from the date of filing the Municipality believed that the grievance subsumed a monetary remedy;1 everyone of the Municipality’s witnesses testified that the APDEA never said anything that indicated that it was not seeking a monetary remedy; and Bennett, Marton and Udland all testified consistently that the Municipality was not willing to proceed to arbitration on the grievance in 1994 unless the APDEA eschewed reliance on the substantive provisions of Article V(2)(N). Further, though the Municipality continues to rely heavily on the APDEA’s letter to the American Arbitration Association in June, 1997, it ________________________ 1Moreover, the Municipality has entirely failed to respond to the line of cases cited by the APDEA in prior briefs that a submission agreement supercedes all prior “pleadings” in a case, even a grievance. This legal axiom was underscored by Mr. Bennett’s testimony as to the jurisdictional effect of the submission agreement in this case, i.e., it gives broad remedial make whole authority to the Arbitrator. Page 1 fails to address the critical point that not one witness for the Municipality testified that she or he relied in any fashion on the AAA letter, or was in any way influenced or misled by the letter. In recounting the record before this Arbitrator, the Municipality seems to follow the same sort of disingenuous approach it took in earlier briefs in this proceeding. The following examples contrast some statements made by the Municipality with the actual contents of the record: • “Although the APDEA was now seeking declaratory relief in addition to the injunction it originally sought, again, it makes no claim or mention of money damages.” Brief at 4. The evidence and legal analysis was uncontradicted that it would have been legally impossible for the APDEA to have sought money damages in the equity lawsuit. (Tr. 214-216; 242.10). • “Yet it apparently never dawned on anyone from the APDEA during this entire three-. and-one-half year period to drop a line to the MOA seeking monetary damages, “lost overtime” or even a “make whole” remedy. “Brief at 9. The record is uncontradicted that (1) Marton, Bennett, Udland, Heun, and Aitchison all believed the grievance entailed a monetary remedy; (2) Bennett filed pleadings in court describing the “root” of the dispute as being about money; (3) Heun did in fact speak with significant members of the Anchorage Assembly about the APDEA’s desire to recover a monetary remedy (discussed infra); (4) One member of the Assembly reported to Heun that he told Tiemey that the APDEA would be seeking a monetary remedy; (5) Heun told Zager that the APDEA would be seeking a monetary remedy (Zager did not remember whether such a conversation occurred); (6) The APDEA never uttered one word that it would not be seeking a monetary remedy, (7) It simply makes no sense whatsoever for anyone to believe that the APDEA, in a case of such moment, would simply be seeking a “cease and desist” order without employees being made whole for losing 51 days off a year.2 • “The damages awards sought by the APDEA in this hearing — which, even as claimed, are exclusively for non-economic injuries — would be unprecedented in American labor law. “Brief at 16. Not only are the types of damages sought by the APDEA in these proceedings the norm in American labor law, they also were the 2 The Municipality has argued that since the grievance did not mention monetary damages, the Municipality was led to believe that the APDEA was not seeking monetary remuneration. This is completely undercut by the timing of the grievance and subsequent telling admissions of Capt. Zager and Mr. Bennett. First, the grievance was filed before Mr. Bennett’s anticipatory temporary restraining pleading and before Capt. Zager’s first affidavit (discussed infra); Capt. Zager clearly reviewed the grievance and drafted his affidavit and other memorandums with the grievance in mind. (See, e.g., Association Exhibit 87 and 97). Page 2 very sort of damages ordered against the Municipality in a prior arbitration decision involving the IBEW with substantially similar issues and with a substantially identical submission statement. (Tr. 269.7; Association Exhibit 100). • “Common sense compels the conclusion that any preference between the two schedules is one of personal taste, not a difference in workplace burdens. Some officers surely prefer to go home after working eight hours. . . “Brief at 27. To the contrary of the notion that the change from 4/10’s to 5/8’s had a minimal impact on employees, Udland testified that the loss of the 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.” (Tr. 557). Heun and Aitchison testified along similar lines. • “Thus, the APDEA members had plenty of time to plan for this change so as avoid (sic) any effect it might otherwise have had on their lives. “Brief at 30. Not only did the Municipality fail to actually produce any contrary evidence to the testimony of Heun as to the ancillary impacts on APDEA members, the fact of the matter is that the Municipality gave APDEA members only one-month’s advance notice of the shift change, hardly enough time or reorganize such things as college schedules, spouse’s \work schedules, and pre-arranged vacations. • “A second reason why the APDEA has not submitted any direct evidence of this “ancillary impact, “may be the reason recognized by Ron Maus. Most of the patrol officers were probably already working a fifth day before the change went into effect. “Brief at 30 (emphasis in original). In fact, Mans admitted on cross- examination 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 in this case was fifth-day overtime.” (Tr. 690-692). The uncontradicted facts are that (1) the APDEA was not silent on the issue of a monetary remedy (communicating directly with the members of a public employer’s governing body can hardly be said to be silence); (2) witnesses for both the Municipality and the APDEA agreed that a past practices grievance such as that filed by the APDEA in this case entails a make-whole remedy; (3) Bennett, Marton, Udland, Aitchison and Heun — all experienced in labor relations — all believed that the APDEA’s grievance encompassed a monetary remedy when it was filed; (4) The Municipality filed a pleading in court describing the grievance as being in Page 3 pursuit of a monetary remedy; and (5) the APDEA never did anything to state or imply to the Municipality that it was not seeking the normal make-whole remedy in a past practice case. Further, the Municipality argues extensively that it was right in initially refusing to allow the APDEA to raise Article V(2)(N) in the arbitration. Brief, at 18-21. How this assists the Municipality is unclear. To begin with, it is an outright concession on the Municipality’s part that it was preconditioning its willingness to arbitrate the grievance on the APDEA’s waiver of its substantive rights under Article V(2)(N)— a concession of the very point raised by this Arbitrator. Moreover, the record is uncontradicted that the Municipality eventually agreed that the APDEA could raise the substantive provisions of Article V(2)(N) in these proceedings. (Tr. 47 et seq.).3 B. The Municipality’s Attacks On Heun’s And Aitchison’s Credibility. A fair portion of the Municipality’s Brief is devoted to an attack on the credibility of Heun and Aitchison. Since virtually all of the testimony of Heun and Aitchison was corroborated by other witnesses, some produced by the Municipality, this attack is as surprising as it is inappropriate. The Municipality’s attack on Aitchison’s credibility occurs primarily in the portion of its Brief dealing with whether the Municipality was insisting that the APDEA abandon its claims ________________________________ 3It is perhaps a measure of the Municipality’s approach to this hearing that it now abandons in a footnote an argument it once made vociferously enough that this Arbitrator posed it as one of the central questions in the remedial hearing — the argument that the APDEA’s conduct in the 1994 negotiations somehow impacted its ability to seek a full remedy in this case. In a case as serious as this, fundamental arguments should not be cast into the air and retracted with the ease of a fly fisher in the Nenana River. Arbitration and labor relations must have constancy and propriety; neither can be a movable feast and survive with integrity. Page 4 under Article V(2)(N) as a precondition to submitting to arbitration in 1994. The Municipality has argued that: “Moreover, Aitchison’s testimony on this issue changed at the hearing depending on which point he was trying to make through his testimony. He first testified that the MOA took the position that he could not raise any claim relating to Article V.2.N. and held this position consistently until December 1997 (sic), when he claims Bill Bennett had a sudden change of heart and agreed to allow the MOA to “raise the past practices clause.” Later, when he is asked why the APDEA did not push for fact-finding or interest arbitration on the scheduling issue during the 1994 negotiations, he explains that the pending litigation and grievance arbitrations were a more sensible means of resolving the issue because “the Municipality was willing” to proceed to arbitration at that time. Either the MOA was willing to proceed to arbitration on “work shift” grievance (sic) during the 1994 negotiations or it was not. It cannot be both depending on which point Mr. Aitchison is attempting to make. His testimony — the APDEA’s only evidence on this issue — is just not credible.” Brief, at 21 (emphasis in original; citations omitted). The difficulties with this attack on Aitchison’s credibility are legion. To begin with, no one — Aitchison, Bennett, nor any other witness — testified that the Municipality was willing to proceed to arbitration during the 1994 negotiations, and every witness in fact testified to the contrary (the transcript references in the Municipality’s brief are to testimony which clearly refers to the decision of the parties to let the 4/10 issue be resolved in the pending litigation, which, if the APDEA prevailed, would end in arbitration). Moreover, Aitchison did not just “claim” that Bennett had a change in heart; Bennett certainly did not contradict Aitchison’s testimony on the point, and any reasonable reading of Bennett’s testimony on the issue supports that of Aitchison’s. Lastly, Aitchison’s testimony as to the Municipality’s willingness to proceed to arbitration under Article V(2)(N) is not “the APDEA’s only evidence on this issue;” Bennett, Udland, Marton and Heun all testified that the Municipality was not willing to arbitrate the grievance under Article V(2)(N). The Municipality also suggests that Mr. Heun’s credibility should be called into question along with his uncontroverted testimony regarding statements made by him to high ranking Page 5 officials at the Anchorage Police Department and the Municipality. In its Brief, the Municipality argues that Sgt. Heun testified inconsistently with a prior affidavit. (Brief at p. 15). Nothing in Sgt. Heun’s testimony was inconsistent with his prior affidavit and all of his arbitration testimony was directly and indirectly corroborated by the Municipality’s own paper trail and witnesses. Moreover, and as indicated supra., Captain Zager never denied that specific conversations occurred between he and Sgt. Heun. Rather he carefully testified that he did not recall or did not remember. (Tr. 627.19; 628.8; 644.20). Finally, and most telling, the Municipality failed to call critical witnesses within their subpoena power who could have theoretically impeached Sgt. Heun’s testimony, but they failed to do so. Obviously, those witnesses were Mark Begich, Joe Murdy and Tom Tierney. It should come as no surprise to this arbitrator why the Municipality chose not to do so. C. SGT. HEUN’S PRIOR AFFIDAVIT The Municipality in its Brief left out a salient portion of paragraph 8 (the first sentence) of Sgt. Heun’s affidavit. Specifically, Sgt. Heun’s affidavit reads as follows: In the conversations in the months of August and September, 1994 with Mr. Tierney, Capt. Zager and then Deputy Chief Udland, I stated on several occasions that the Municipality’s actions violated the contract, and urged the Municipality to reconsider its decision. I warned the Municipality that APDEA members could be entitled to a substantial sum of money if the APDEA prevailed in the grievance. That is precisely what Sgt. Heun testified to at the hearing. No one questioned Sgt. Heun regarding this paragraph during the arbitration. Sgt. Heun spoke with Assemblymen Mark Begich and Joe Murdy about monetary damages. (Tr. 299-300). He was absolutely sure that he told Capt. Zager this would cost the Municipality if the Union prevailed. (Tr. 309.5). He testified unequivocally that there was an understanding at the time (of his conferences with Capt. Zager) that there would be contractual Page 6 monetary ramifications of loosing 52 days a year (Tr. 364.18) and that the term “big bucks” was used a lot in his conversations with representatives. (Tr. 365.9). Sgt. Heun testified that every time he saw then Deputy Chief Udland, Capt. Zager and an Assembly member who would listen he would bring up the matter. (Tr. 366.10). He told Capt. Zager repeatedly that the purported savings would have to be compared to what the Municipality might be paying out in the event the Association prevailed in the underlying grievance for missed overtime and having to work their fifth day. (Tr. 367.16). He was absolutely ~ that he talked to Joe Murdy regarding the monetary damages. It was a constant thing. (Tr. 375.10). Mr. Murdy told him that he had specifically discussed the potential damage issue with Tom Tiemey. (Tr. 301.19). (See also Tr. 296.25- 297.5; 297.22; 299.2; 299.15). It is not surprising that Sgt. Heun did not have significant conversations with then Deputy Chief Udland regarding this contractual violation and potential damages ~ filing the grievance since Capt. Zager was the Chief’s point man and the individual within the chain of command that Sgt. Heun would necessarily direct all inquiries. Moreover, and as echoed by Chief Udland during these proceedings, this matter was being handled by City Hall!. Indeed, the Chief was either reluctant or outright refused to discuss the 4/10 issue or potential ramifications when he made appearances before the executive board. (Tr. 319-320; 321.11; 322.16; 394.8). Equally compelling, the Municipality’s own paper trail completely and unequivocally supports and corroborates Sgt. Heun’s testimony before this Arbitrator regarding his repeated contacts with members of the Department and the Municipality regarding the Association’s intent to seek monetary damages in this matter. According to Sgt. Heun, Capt. Zager told him (in response to his warnings regarding monetary damage exposure) that all recourse would be open to the Association through the Page 7 grievance process. (Tr. 298.12; 311.11-312.4). This was corroborated by Capt. Zager’s own affidavit (Association Exhibit 123) where he acknowledged that not granting a temporary restraining order would not irreversibly block other avenues for the Association. (See also Association Exhibit 87 and 97). Mr. Bennett’s anticipatory temporary restraining order response (Association Exhibit 87) acknowledged that this was a monetary issue and quoted a first circuit case indicating that the Arbitrator could make whole most losses sustained if the Association’s grievance was substantiated. (See Tr. 309.5; 315.4). Moreover, Capt. Zager, Chief Udland and everyone at the Municipality (especially Mr. Bennett) were keenly aware of the fact that the touted savings were based upon the patrol officers loss of 52 days a year from their current schedule. To suggest that Sgt. Heun was vague or incorrect in his testimony before this Arbitrator is an insult to logic and contrary to every piece of documentary evidence presented in this case. D. The Law Fails to Support the Municipality’s Legal Position.4 The heart of the Municipality’s legal argument seems to be that an arbitrator only has the authority to award any form of back pay, damages, overtime compensation, or other economic remedy when there is evidence of “actual monetary injury” to employees. Not only is this an incorrect statement of the law, but it is a statement that is contradicted by several of the cases cited by the Municipality in its Brief. ___________________________________ 4One other note on the Municipality’s treatment of the law is appropriate. In a separate section of its Brief, the Municipality raises for the first time the Alaska Supreme Court’s decision in APDEA v. Municipality of Anchorage, 938 P.2d 1027 (Alaska 1997). The Municipality argues that somehow the case stands for the proposition that the change in work schedules in this case was not covered by Article V(2)(N). In fact, the case stands for nothing of the sort. The APDEA case holds that the institution of a rotation policy Out of specialty positions is a management right not subject to bargaining under the Anchorage Municipal Code, and thus not grievable under Article V(2)(N). Page 8 For example, in The Kroger Co., 85 LA 1198 (St. Antoine, 1985), the employer violated the contract by inappropriately working its grocery store employees on a holiday when, by contract, its store should have been closed. Though there was no proof of any “actual monetary injury” to employees, the arbitrator nonetheless ordered the employer to pay to employees all of the profits it made by keeping its stores open on the holiday. The City’s description of other cases is incomplete at best. For example, while it is true that the arbitrator in Landmark Hotel Corp., 93 LA 180 (Draznin, 1989) did deny a monetary remedy, the Municipality failed to note that that the arbitrator commented that it was not until its post-hearing brief that the union even sought a monetary remedy, and that there was no record developed which formed any basis for a monetary remedy. And, while the arbitrator in Matanuska Electrical Assoc., 109 LA 508 (Henner, 1997) did refuse to award punitive damages, the arbitrator’s opinion makes it clear that the arbitrator believed that in an appropriate case, even in the absence of a contractual provision authorizing or a grievance requesting punitive damages, it might be appropriate for an arbitrator to effectuate the purposes of the contract by making a punitive damage award. The law is clear that when an employer has breached its contractual or bargaining obligations by inappropriately changing the work hours of employees, employees should be compensated at the overtime rate for working on what would have normally been their time off. E.g. Spokane County Deputy Sheriff’s Association, PECB Decision 5698, 1996 WL 686780 (Wash. PERC Hearing Examiner), aff’d PECB Decision 5698-A (1996) (unilateral change from 5/8’s to 4/10’s; employees entitled to half-time compensation in addition to compensation already paid); City of Lake Worth, Florida, 97 LA 240 (Lawrence Kanzer, 1991 )(change in starting times; employees entitled to overtime compensation in addition to compensation already Page 9 paid); Arcata Graphics, 90-2 ARB 18564 (Ferrin Matthews, 1990) (change in weekend days; employees entitled to half-time compensation in addition to compensation already paid); Anchor Glass Container Corp., 1985 WL 263374 (L.R.P.) (Irvine Kerrison, 1985)(change in starting times; employee entitled to half-time compensation in addition to compensation already paid). There can be no doubt that employees are harmed when they lose 51 days off a year for four years. The arbitral process fully supports a monetary remedy for such harm. E. Conclusion The Municipality has continued to pretend that facts do not exist despite the record, mischaracterize facts that do, not call known witnesses who would have provided devastating testimony to its defense, refused to allow its prior counsel to answer specific questions which would likewise have proved fatal to its defense and, finally, misstated the law. It is respectfully requested that the Arbitrator reject the Municipality’s artful attempt to extricate it from the consequences of its past choices by awarding the APDEA’s requested damages. Respectfully submitted this 2nd day of July, 1999. DILLON & FINDLEY, P.C. Attorneys for Grievant Anchorage Police Department Employees Association By: Original signed by: Ray R. Brown Page 10 CERTIFICATE OF SERVICE The undersigned hereby certifies that on the 2nd day of July, 1999, a true and correct copy of the foregoing document was served by: [ ] facsimile [ ] hand delivery [ x ] first class mail on the following attorney(s) of record: Thomas M. Daniel Perkins Coie 1029 W. 3” Ave., Suite 300 Anchorage, AK 99501 Original signed by: Lisa Kusmider LAW OFFICES DILLON & FINDLEY A PROFESSIONAL CORPORATION 510 L Street, Suite 603 Anchorage, Alaska 99501 Tel (907) 277-5400 • Fax (907) 277-9896 Page 11