of Anchorage, (MOA) and Anchorage
Municipal Employees Association, (AMEA)
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.
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.
On behalf of AMEA:
Teamsters Union Local 959
520 E. 34th Avenue
Anchorage, AK 99503
On behalf of MOA:
Donald F. Smith
Labor Relations Manager
Municipality of Anchorage
Employee Relations Department
P.O. Box 196650
Anchorage, AK 99519-6650
The parties were unable to stipulate to the issues in the case. AMEA formulated the issues as follows:
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
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?
formulated the issues as follows:
Are there grounds to dismiss this grievance for procedural and/or
Did the Municipality of Anchorage correctly interpret the collective
bargaining agreement when it refused a “flex” upgrade for the grievant on
June 29, 1998?
If so, what is the remedy?
review, the Arbitrator formulates the issues as follows:
grievance timely filed in accordance with the collective bargaining agreement?
matter subject to arbitration according to the terms of the collective
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?
RELEVANT PORTIONS OF THE AGREEMENT
collective bargaining agreement between the parties provides, in pertinent part,
5 - MANAGEMENT RIGHTS
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.
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.
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.
Allocation and Reallocation of Positions.
. . .
A. Classification Actions.
actions are of the following types:
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
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
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.
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.
Deborah Agler, the grievant, has been a permanent MOA employee since
about June, 1996.
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.
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
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
V. POSITION OF THE PARTIES
A. The Position of AMEA.
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. 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. 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.
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. 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.
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. 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.
The Position of the MOA.
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.
It further contends the grievance is untimely because there was no
agreement to extend the time limit between the parties.
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
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.
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.
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).
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.
A. The Question of Arbitrability.
1. Timeliness of Grievance
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.”
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.
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.
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
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).
Thus, under this view, the AMEA grievance was timely
2. Substance of Grievance
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.
actions are of the following types:
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.
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. Such classifications decisions are expressly exempted from the grievance/arbitration provisions of the collective bargaining agreement. 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.
B. The Merits of the Grievance.
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.
The grievance is denied.
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.
David Gaba, Arbitrator
November 10, 1999
 Exhibit J-2 (March 5, 1996--December 31, 1998 AMEA-MOA collective bargaining agreement extended through December 31, 2000).
 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.
 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.
 See Exhibit U-1.
 Exhibit E-1 (Flex-Staff Procedures, How Do You Process a Flex-Staff Upgrade?).
 Exhibit U-5.
 Exhibit U-6.
 Exhibit U-15.
 Exhibit U-9.
 Exhibit U-7.
 Exhibit U-8.
 AMEA’s Post Hearing Brief at 6-8.
 Id. at 8.
 Id. at 8-10.
 Id. at 12-13.
 Id. at 13-15.
 Id. at 16-20.
 Id. at 20-24.
 MOA’s Post Hearing Brief at 3.
 Id. at 3-4.
 Id. at 4-5.
 Id. at 8-9.
 Id. at 9.
 Id. at 9-14.
 Id. at 15.
 Exhibit J-2 at Article 11.3.1.
 Exhibit E-1.
 Hillel Day School, 89 LA 905, 907 (Lipson 1987) quoting, How Arbitration Works, Elkouri and Elkouri, Fourth Edition, BNA, p. 197. (Citation omitted).
 Emphasis added.
 Exhibit J-2 at 9.5.3.