1999 NAC 133 Municipality of Anchorage, (MOA) and Anchorage Municipal Employees Association, (AMEA)

Title: Municipality of Anchorage, (MOA) and Anchorage Municipal Employees Association, (AMEA)
Date: November 10, 1999
Arbitrator: David M. Gaba
Citation: 1999 NAC 133

This arbitration arises pursuant to a collective bargaining agreement between ANCHORAGE MUNICIPAL EMPLOYEES ASSOCIATION (hereinafter “AMEA” or “Union”), and the MUNICIPALITY OF ANCHORAGE (hereinafter “MOA”), under which DAVID GABA was selected to serve as Arbitrator and under which his Award shall be final and binding among the parties.

A hearing was held on Friday, September 24, 1999, at the Public Works Department Building in Anchorage, Alaska. The parties had the opportunity to examine and cross-examine witnesses, introduce exhibits, and fully argue all of the issues in dispute. Both parties filed post-hearing briefs on or about October 29, 1999.

The parties were unable to stipulate to the issues in the case. AMEA formulated the issues as follows:

1. Did the MOA violate the AMEA-MOA collective bargaining agreement when it did not consider Deb Agler’s code enforcement work experience she was assigned and performed when her supervisor requested she be promoted to Code Enforcement Officer?

2. Did the MOA violate the AMEA-MOA collective bargaining agreement when it did not “flex” (promote) Deb Agler from Code Enforcement Officer to Senior Code Enforcement Officer no later than May 1998?

3. Did the MOA violate the AMEA-MOA collective bargaining agreement when it unilaterally changed its interpretation of “code enforcement work” to “code enforcement officer work”?

4. If the answer is yes to any or all of these questions, then what is the remedy?

1. Are there grounds to dismiss this grievance for procedural and/or substantive reasons?

2. Did the Municipality of Anchorage correctly interpret the collective bargaining agreement when it refused a “flex” upgrade for the grievant on June 29, 1998?

1. Was the grievance timely filed in accordance with the collective bargaining agreement?

2. Is the matter subject to arbitration according to the terms of the collective bargaining agreement?

3. If the matter is arbitrable, did the MOA violate the collective bargaining agreement when it denied the flex-staff upgrade request with respect to Deborah Agler, and if so, what is the appropriate?

The collective bargaining agreement between the parties provides, in pertinent part, as follows:

The Municipality retains the right to issue reasonable rules and regulations governing the internal conduct of the Municipal organization. The Municipality, pursuant to the Municipal Charter, has, and will retain, the exclusive right and power to manage and control its business and direct the working forces, including, but not limited to, the right to recruit, hire, classify, evaluate, re-assign, layoff, suspend or discharge for just cause, promote, demote, or transfer its employees in a manner not in conflict and/or inconsistent with the provisions of this Agreement.

9.5.3 Reclassification Request. An employee, who believes that he or she consistently performs work in a higher established classification, may file a request for reclassification pursuant to the terms of the Municipal Personnel Rules AMC 3.30.027 B. The employee and the Agency Head will be advised in writing of the disposition of the request. These classification decisions are expressly exempted from the grievance/arbitration provisions of this Agreement.

A. Employee Requests. Employees shall have the right to the consideration of requests they may have regarding the application of the classification and pay plans to their position. The employee shall make his or her request through his or her Agency Head, who shall forward the request with his or her comments and recommendations concerning the appropriate allocation to the Director for his or her review. The employee and the Agency Head will be advised in writing of the disposition of the request.

9.5.4 Flex Staffing. The Municipality shall advise any employee who is appointed to a flexed staffed position, the conditions and requirements to be flexed to the next higher level. The MOA shall advise the employee in writing of these conditions at the time of appointment to the flex staff position.

A. Classification Actions. Classification actions are of the following types:

1. Reclassification are reallocations of positions from one class to another as a result of changed duties, responsibilities, and/or authority of a position either through direct reassignment by management or through structured development as in flex-staffing.

11.1 Grievance. The term “grievance” means a disagreement or dispute between the Municipality and the Association or a member of the Association regarding hours, wages, working conditions, terms of employment, interpretation of the applicable Personnel Rules and Regulations, or a violation of this Agreement affecting a member with the Association and covered by this Agreement.

11.3.1 Grievance Situation. A grievance may only be processed in accordance with the procedure contained herein. When a grievance situation or knowledge of a grievance situation arises, the employee(s) involved, or the Association, and the Municipality will take any administrative action necessary to resolve the grievance. If the grievance cannot be resolved in this informal manner, then it may be reduced to writing by the Association and submitted to the following procedure, which shall include meeting between the affected employee(s) and his or her representative, if requested by either party. Failure to submit the grievance in writing to the department/agency head within thirty (30) days of the known date of the violation of when an employee could have reasonably become aware of the violation shall bar further action.

11.5.2 Authority of Arbitrator. In accordance with the Anchorage Municipal Charter and standard arbitral practice, the arbitrator shall have no authority to add to, alter, amend, or change any law, or any provisions of the Agreement in any manner whatsoever, or to replace any authority granted by law to any party.[1]

Deborah Agler, the grievant, has been a permanent MOA employee since about June, 1996.[2] At that time she was hired by the MOA as a Senior Office Assistant (pay range 8) with the working title of Code Enforcement Secretary. In February 1997, Ms. Agler transferred from the Code Abatement Unit to the Land Use Enforcement Unit at which time her title changed to Land Use Enforcement Secretary. In February 1998, Ms. Agler applied for a Code Enforcement Officer position. She was hired for this position on March 2, 1998. Her progression in this position is the issue of this grievance. There is not doubt that she is considered to be a valuable employee within her department.

The Code Enforcement Officer position is a flex-staff position.[3] As set forth in the Flex-Staff Information Form, “[t]he reason for creating flex-staff positions is to provide entry and full-performance levels which, in turn, provide an opportunity for incumbents to build skill and experience at the lower level and subsequently move to the higher level when minimum qualifications are met, and all higher level duties are successfully performed.”[4] As required by Article 9.5.4 of the collective bargaining agreement, Form P-4 sets forth the duties and responsibilities for each level of the flex-staff position as well as the minimum qualifications and criteria for advancement to the higher levels.[5] The form entitled Flex-Staff Procedures sets forth how a flex-staff upgrade is processed and explains as follows:

Some confusion exists concerning the timing of flex-staff upgrades. These upgrades are based on assignment by management and full performance by the employee of all the higher level duties of the higher flex-staff classification, not on other factors such As time limits. It does not, however, occur during the employee’s probationary period. It may or may not occur after probation. There is no requirement to move an incumbent to the higher level if their performance does not warrant the move or if the higher level duties are not assigned. Incumbents may be “flexed” when, in the judgment of the supervisor, they have been assigned and are functioning at the full performance level.

Actually initiating a flex-staff upgrade is a simple procedure. It requires a memorandum from the Department to the Manager, Classification and Pay, which requests that the employee be “flexed” to the higher level classification and specifies the incumbent’s name, position control number (PCN), current job classification and verifies that the employee has been assigned and is performing all the higher level duties. Classification & Pay will review and verify the request and, if appropriate, approve it. No higher level authorization is required.[6]

Two months after Ms. Agler had been hired into the Code Enforcement Officer position, her immediate supervisor, Steve Ellis, recommended by memorandum dated May 20, 1998, that she be promoted to Senior Code Enforcement Officer on the basis that she met the criteria stated in Form P-4.[7] If this was approved, Ms. Agler would move from pay range 9 to pay range 11. Mr. Ellis’ request was denied by Debi English, Municipal Personnel Director, by memorandum dated June 29, 1998, which states:

Deborah Agler was promoted form Senior Office Associate to Code Enforcement Officer March 2, 1998. The P-4 requires the employee to meet the minimum qualifications (MQ’s) for Senior Code Enforcement Officer (SCEO) and demonstrates the ability to function successfully under general supervision and complete duties at the full performance level. The MQ’s are:

Graduation from high school or equivalent, and two years of code enforcement or public contract experience such as delinquent collections, outside sales or public relations, at least one of which must have been in code enforcement work.

As of this date, Ms. Agler lacks eight (8) months of code enforcement experience. If she remains in her current position, she will meet the MQ’s for SCEO March 1999. You may resubmit your request at that time.[8]

After he received the June 29 memo, Mr. Ellis told Ms. Agler that there was a mistake and that he would follow through on appealing the determination. Ms. Agler then assisted Mr. Ellis by drafting a memorandum for him to use as the basis for the appeal. On July 13, 1998, Ms. Agler, who was concerned that he might not get his appeal finalized in a timely manner, sent him an e-mail to check on the status of the draft appeal Mr. Ellis was to submit.[9] Mr. Ellis finally submitted the appeal by sending a response to Ms. English’s denial of his flex-staff upgrade to Susan Lindemuth, Manager of Classification and Employee Services, by memorandum dated July 17, 1998.[10] In the July 17 memo, Mr. Ellis recognized that Ms. English may not have been aware of all of Ms. Agler’s experience when she denied the flex-staff upgrade request and set forth all of Ms. Agler’s experience in the Land Use Enforcement section, including her experience from January of 1996 when she was a temporary employee.

In August, because no response had been received to the July 17 memo, Jack Frost, who was acting manager in Ellis’ absent, forwarded another request to Ms. Lindemuth.[11] In his memorandum, Mr. Frost further elaborated on Ms. Agler’s qualifications, including information that had not been previously supplied, and reiterated the request that she be flexed to Senior Code Enforcement Officer. During this time period, Mr. Ellis and/or Mr. Frost told Ms. Agler that she should hold off on filing a grievance since Personnel did not have all the facts and that this matter would be straightened out.

Finally, on October 1, 1998 Ellis received a response from Ms. Lindemuth, the Manager of Classification and Employee Services, denying his request for flex-staff advancement for Ms. Agler.[12] This memorandum was received in the Public Works Department on October 6, 1998. Upon receipt of the memo, Mr. Ellis advised Ms. Agler that the Public Works Department had exhausted all of its avenues of appeal and that there was nothing else he could do. Subsequently, on October 28, 1998, AMEA filed a grievance at step one on Ms. Agler’s behalf.

The Union’s position in regard to timeliness is threefold. First, it maintains that the MOA has raised the issue of timeliness in bad faith on grounds that Ms. Agler did not file the grievance after Ms. English’s denial of Ellis’ flex-staff promotion request because her supervisors (who were representatives of MOA) advised her to her detriment that the denial was an error, that they would work on correcting it through internal means, and that several attempts were in fact made to correct the denial.[13] Second, any requirement that the grievance be filed within thirty (30) days of receipt of the June 29 memo was waived by the MOA when its representatives advised Ms. Agler that the matter would be resolved favorably.[14] Finally, AMEA contends that the October 28, 1998 grievance was timely filed because there was no known violation until about October 6, 1998 after receipt of the October 1 memorandum from Ms. Lindemuth stating that Classification and Pay denied the flex-staff upgrade request and that the grievance was filed within thirty (30) days from either October 1 or October 6.[15]

As to the arbitrability of the case, AMEA asserts that any doubts as to arbitrability are to be resolved in favor of arbitrability. The Union maintains that the issues here are not classification issues that are exempt from arbitration, but rather concern qualification, promotion, and pay.[16] Because this case concerns a supervisor request for a flex-staff promotion and not an employee request for reclassification, the Article 9.5.3 provision of the collective bargaining agreement that expressly exempts reclassification requests from arbitration is not applicable.[17]

In regard to the merits of the case, AMEA argues that MOA’s denial of the promotion request was arbitrary and capricious because MOA unilaterally reinterpreted the definition of “code enforcement work” contrary to past practices when it determined that Ms. Agler did not meet the minimum qualifications warranting promotion to the higher level in her flex-staff position.[18] The Union further maintains that Ms. Agler’s work experience met the minimum experience requirements and that she should be promoted to the position of Sr. Code Enforcement Officer, effective May 1998.[19]

The MOA first claims that the grievant’s claim is untimely because it was not filed within thirty (30) days from when the grievant’s supervisor was notified that the grievant was ineligible for the flex upgrade as required by the collective bargaining agreement.[20] It further contends the grievance is untimely because there was no agreement to extend the time limit between the parties.[21] The MOA contends its position is justified even though grievant’s supervisors appealed the denial to flex upgrade, because the language of Article 11.3.1 expects that administrative remedies will be pursued while the 30-day clock is ticking, and therefore their actions do not establish a mutual agreement to extend the 30-day time limit set forth in the collective bargaining agreement.[22]

As to the substantive arbitrability of this case, the MOA argues that the decision of when to flex upgrade is a management decision and a classification action that is identified as a reclassification.[23] In addition, the MOA points out that the request for reconsideration of the denial of her flex upgrade was made with Ms. Agler’s knowledge and agreement. Because Article 9.5.3 of the collective bargaining agreement precludes the grievant from the grievance and arbitration process, MOA submits that his grievance should be denied.[24]

Upon the merits, the MOA contends that at the time of the request, Ms. Agler did not meet the minimum qualifications for a flex upgrade which were identified in Form P-4 (Exhibit U-1).[25] Moreover, the MOA asserts that the flex upgrade was precluded under the long-standing policy that provides that flex upgrades are not allowed while an employee is in probationary status as was Ms. Agler.[26]

The collective bargaining agreement provides that “[w]hen a grievance situation or knowledge of a grievance situation arises, the employee(s) involved, or the Association, and the Municipality will take any administrative action necessary to resolve the grievance.”[27] In this instance, administrative action was taken in an attempt to resolve the grievance including grievant’s supervisors’ attempts to “correct the problem” by submitting the July 17 and August 12 memoranda which set forth additional facts to be considered when making the flex upgrade decision and their assurances to Ms. Agler that they were “working” on it.

Under the collective bargaining agreement, if the grievance cannot be resolved informally, it must be reduced to writing by the Association and submitted in writing to the department/agency head within thirty (30) days of the known date of the violation of when an employee could have reasonably become aware of the violation shall bar further action.[28] I find that the known date of the violation did not occur until October 6, 1998, the date Public Works received the October 1, 1998 memorandum under which Ms. Lindemuth denied the flex upgrade request. Here, the evidence established that the MOA procedures for requesting a flex-staff upgrade provided that the request must be submitted from the department to the Manager of Classification and Pay.[29] Prior to the October 1 memorandum from Ms. Lindemuth, the denial for the promotion came from Ms. English who was Manager of the Personnel Department, which as testified to by Ms. Lindemuth, was separate from Classification at that time. At this point, Mr. Ellis informed Ms. Agler, that he was unable to correct the problem. All administrative remedies were exhausted at this point and the 30-day clock started ticking. Because the grievance was filed on October 28, it was filed within the thirty (30) day time requirement set forth in Article 11.3.1, and is timely.

Moreover, this Arbitrator finds the matter at issue is in the nature of a “continuing grievance,” i.e., each time the MOA fails to grant the requested flex-staff upgrade (provided it was mandated), there was a violation which starts the 30-day time period running. There is an extensive body of arbitral opinion regarding asserted continuing violations, the prevailing view, which I adopt, has been described as follows:

Many arbitrators have held that “continuing” violations of the agreement (as opposed to a single isolated and completed transaction) give rise to “continuing grievances in the sense that the act complained of may be said to be repeated from day to day --- each day there is a new “occurrence” these arbitrators have permitted the filing of such grievances at any time, this being deemed a violation of the specific limits stated in the agreement (although any back pay ordinarily runs only from the date of filing).[30]

The applicable standards for contract interpretation are well established. Where the language in the collective bargaining agreement is clear and unambiguous, the arbitrator must give effect to the plain meaning of the language. This is so even when one party finds the result unexpected or harsh. It is apparent the outcome of this case turns upon whether the decision to deny Ms. Agler a flex-staff upgrade is determined to be a classification decision. I conclude that it is. First, I agree with the MOA that the decision of when to “flex upgrade” an employee is a management decision and further that a flex upgrade is classification action identified as a reclassification. As stated in the collective bargaining agreement:

A. Classification Actions. Classification actions are of the following types:

1. Reclassification are reallocations of positions from one class to another as a result of changed duties, responsibilities, and/or authority of a position either through direct reassignment by management or through structured development as in flex-staffing.[31]

The collective bargaining agreement in this case is clear and unambiguous. Article 10.2.6.A defines classification actions and expressly states that reclassifications are reallocations of positions as in flex-staffing. The collective bargaining agreement further provides that employees have the right to request reclassification through their agency head.[32] Such classifications decisions are expressly exempted from the grievance/arbitration provisions of the collective bargaining agreement.[33] Mr. Ellis and Mr. Frost, with the knowledge and agreement of Ms. Agler, requested reconsideration of the denial of her flex upgrade in accordance with Anchorage Municipal Code, part 3.30.027 B and Article 9.5.3 of the collective bargaining agreement. Under the express terms of the collective bargaining agreement, such classifications are not arbitrable.

Because I find the case is not arbitrable, the grievance is denied without consideration being given to the merits of the grievance.

Although I find that the grievance was timely filed, I conclude that subject matter of the grievance is not arbitrable pursuant to the express terms of the collective bargaining agreement.

All fees and expenses charged by the Arbitrator shall be borne equally by the parties to the arbitration, as provided for in Article 11.6 of the parties collective bargaining agreement.

[1] Exhibit J-2 (March 5, 1996--December 31, 1998 AMEA-MOA collective bargaining agreement extended through December 31, 2000).

[2] Prior to that time, from January 1996 to June 1996, Ms. Agler was hired as a Senior Offices Assistant for MOA through Kelly Temporary Services.

[3] A flex-staff position is one “which [is] allocated to more than one level in the same classification series by virtue of differing levels or responsibilities assigned. Higher level duties, independent of action, decision-making authority are examples of these differences.” Exhibit U-1 (Flex-Staff Information Form, Form P-4) at 1.

[4] Id.

[5] See Exhibit U-1.

[6] Exhibit E-1 (Flex-Staff Procedures, How Do You Process a Flex-Staff Upgrade?).

[7] Exhibit U-5.

[8] Exhibit U-6.

[9] Exhibit U-15.

[10] Exhibit U-9.

[11] Exhibit U-7.

[12] Exhibit U-8.

[13] AMEA’s Post Hearing Brief at 6-8.

[14] Id. at 8.

[15] Id. at 8-10.

[16] Id. at 12-13.

[17] Id. at 13-15.

[18] Id. at 16-20.

[19] Id. at 20-24.

[20] MOA’s Post Hearing Brief at 3.

[21] Id. at 3-4.

[22] Id. at 4-5.

[23] Id. at 8-9.

[24] Id. at 9.

[25] Id. at 9-14.

[26] Id. at 15.

[27] Exhibit J-2 at Article 11.3.1.

[28] Id.

[29] Exhibit E-1.

[30] Hillel Day School, 89 LA 905, 907 (Lipson 1987) quoting, How Arbitration Works, Elkouri and Elkouri, Fourth Edition, BNA, p. 197. (Citation omitted).

[31] Emphasis added.

[32] Exhibit J-2 at 9.5.3.

[33] Id.

Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.