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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Larsen v. Municipality of Anchorage (12/23/99) sp-5220

Larsen v. Municipality of Anchorage (12/23/99) sp-5220

     Notice:  This opinion is subject to correction before publication in
the Pacific Reporter.  Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.



             THE SUPREME COURT OF THE STATE OF ALASKA
                                 

JACK LARSEN and DAVID COOPER, )
                              )    Supreme Court No. S-8297
             Appellants,      )
                              )    Superior Court No.
     v.                       )    3AN-93-11518 CI
                              )
MUNICIPALITY OF ANCHORAGE,    )    O P I N I O N
                              )
             Appellee.        )    [No. 5220 - December 23, 1999]
______________________________)




          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                    Peter A. Michalski, Judge.


          Appearances: Kenneth W. Legacki, Anchorage,
for Appellants.  Theresa Hillhouse and Ella Anagick, Assistant
Municipal Attorneys, and Mary K. Hughes, Municipal Attorney,
Anchorage, for Appellee.


          Before:  Matthews, Chief Justice, Eastaugh,
Fabe, and Bryner, Justices. [Carpeneti, Justice, not
participating.]


          FABE, Justice.


I.   INTRODUCTION
          Anchorage police officers Jack Larsen and David Cooper
sued the Municipality of Anchorage (MOA) for its failure to assign
them to a task force jointly undertaken with the federal Drug
Enforcement Administration (DEA).  Larsen and Cooper alleged that
under their collective bargaining agreement, their supervisor
should have made the assignments based on seniority.  The superior
court granted summary judgment to MOA on the grounds that the
officers had not timely challenged the assignments and that the
collective bargaining agreement did not require MOA to award the
assignments based on seniority.  Because we conclude that the
officers timely challenged the assignments and that a factual issue
exists regarding the necessity of job assignment by seniority, we
reverse and remand.
II.  FACTS AND PROCEEDINGS
          Jack Larsen and David Cooper are senior police officers
in the Anchorage Police Department.  They are employed under a
collective bargaining agreement between MOA and the Anchorage
Police Department Employees Association (APDEA).  They work in the
"Metro"unit, which specializes in undercover operations to
apprehend drug dealers.
          On January 3, 1991, Lieutenant Dan Loy, commander of the
Metro unit, made staff assignments for that year.  He assigned
Larsen and Cooper to "work street corner[s]"focusing on "crack
house drug dealers." He assigned two officers with less seniority,
Linda O'Brien and Wilbur Hooks, to an Organized Crime Drug
Enforcement Task Force known as "Operation Valley Thunder." Loy
assigned the junior officers to this joint investigation
coordinated by the Anchorage Police Department and the federal DEA,
ostensibly because he wanted them to "receive the additional
training and expand their abilities as investigators."
          Operation Valley Thunder lasted over a year, from January
1991 through February 1992.  The assignment required O'Brien and
Hooks to move to the Federal Building in Anchorage and to change
from an afternoon shift to a morning shift.  While assigned to
Operation Valley Thunder, O'Brien and Hooks reported to a DEA
supervisor.
          After Loy made the assignments, Cooper complained to Loy
that Loy should have made the assignments based on seniority under
the collective bargaining agreement.  Although Loy testified that
he did not remember this complaint, O'Brien recalled that Loy told
her within ten days of the assignment that Cooper and Larsen had
objected to the assignment.  According to O'Brien, Loy also told
O'Brien that he would assign her to Operation Valley Thunder
regardless of the senior officers' complaints.
          On June 4, 1991, a representative of the police
department management, Captain Tom Walker, and a representative of
APDEA, Officer Alan Kraft, prepared and signed a memorandum stating
that "any and all labor relations complaints of a grievable nature
that may arise out of [Operation Valley Thunder] would be placed on
hold." The memorandum further provided that the collective
bargaining agreement's requirement that grievances be filed within
ninety days would be waived and that "[n]o complaint will be
forwarded to the Executive Board of APDEA until the completion of
this investigation." The purpose of this agreement was to preserve
the confidentiality of Operation Valley Thunder.  According to both
Walker and Kraft, they drafted the memorandum shortly after they
first heard oral complaints from Larsen and Cooper about the
Operation Valley Thunder assignments.
          On November 20, 1991, Larsen and Cooper filed a written
grievance, alleging that the Operation Valley Thunder job
assignments violated the collective bargaining agreement because
they were not based on seniority.  As a remedy, they sought the
same overtime benefits paid to the assigned officers and asked that
Loy follow the seniority requirements of the collective bargaining
agreement.  Although APDEA initially agreed to represent Larsen and
Cooper in arbitration with MOA, the APDEA Executive Board
ultimately concluded that the claim lacked merit and decided not to
take the grievance to arbitration.
          In December 1993 Larsen and Cooper filed a complaint in
the superior court seeking compensation from MOA for its failure to
assign them to Operation Valley Thunder based on their seniority
and from APDEA for its failure to represent them in their grievance
against MOA.  In November 1995 Larsen and Cooper stipulated to
dismissal of the claims against APDEA.
          In April 1997 MOA filed two motions for summary judgment
that are at issue in this appeal.  First, it moved for summary
judgment on the ground that Larsen and Cooper had not timely
grieved the Operation Valley Thunder assignments.  Second, it moved
for summary judgment on the ground that the collective bargaining
agreement did not require that the Operation Valley Thunder
assignments be based on seniority.  Superior Court Judge Peter A.
Michalski granted both motions and awarded $31,008.20 in attorney's
fees to MOA.  Larsen and Cooper appeal the superior court's
decision granting summary judgment and its award of attorney's
fees.
III. DISCUSSION
     A.   Standard of Review
          We will affirm a superior court's grant of summary
judgment "if the evidence in the record presents no genuine issue
of material fact and the moving party is entitled to judgment as a
matter of law."[Fn. 1]  "The moving party bears the burden of
demonstrating that there is no dispute as to any issue of material
fact."[Fn. 2]  We will draw all reasonable inferences of fact in
favor of the nonmoving party. [Fn. 3]
          This appeal also requires us to interpret a collective
bargaining agreement.  Contract interpretation presents a question
of law that we review de novo. [Fn. 4]  "When interpreting
contracts, the goal is to 'give effect to the reasonable
expectations of the parties.'"[Fn. 5] "In determining the intent
of the parties the court looks to the written contract as well as
extrinsic evidence regarding the parties' intent at the time the
contract was made."[Fn. 6] "Where there is conflicting extrinsic
evidence the court, rather than the jury, must nonetheless decide
the question of meaning except where the written language, read in
context, is reasonably susceptible to both asserted meanings."[Fn.
7]
     B.   The Grievances Were Timely as a Matter of Law.

          The superior court granted summary judgment to MOA on the
ground that Larsen and Cooper failed to timely challenge the
Operation Valley Thunder assignments. [Fn. 8]  The collective
bargaining agreement in effect during the times relevant to this
appeal required that grievants report complaints to a shop steward
or APDEA representative who would "attempt to resolve the matter by
consulting with the employee's shift supervisor." If the steward
or representative could not resolve the matter in this informal
manner, the agreement required the representative to present the
matter in writing to the chief of police within ninety calendar
days from the date of the occurrence upon which the grievance was
based.  Lieutenant Loy made the disputed assignments on January 3,
1991.  The official ninety-day deadline was therefore on April 3,
1991.  Yet the plaintiffs failed to file a grievance until November
20, 1991.
          To justify their failure to meet this deadline, Larsen
and Cooper respond that, in a June 4, 1991 memorandum, the police
department management and APDEA representatives waived the ninety-
day requirement for "any and all"grievances arising out of
Operation Valley Thunder.  Addressed to then Chief of Police Kevin
O'Leary, the memorandum stated:
          After our discussion with Fred Thomas of
D.E.A. regarding his concerns about the security of the above
investigation, we had a meeting with the Metro Unit.  As a result
of that meeting, it was decided by all members of the unit that any
and all labor relations complaints of a grievable nature that may
arise out of this investigation would be placed on hold.  No
complaint will be forwarded to the Executive Board of APDEA until
the completion of this investigation.  The incidents will be
documented by a memo to Capt. Walker and to Off. Kraft.  The 90 day
requirement for filing of grievances will be waived.  There will
[be] no accrual of retroactive benefits as a result of this
agreement.  This agreement is not precedent setting, nor will it
establish "Past Practice"issues.

          The purpose of this agreement is not to avoid
compliance with the existing contract between the Municipality of
Anchorage and APDEA, but to allow a sensitive investigation to
proceed, and still maintain the rights of the officers involved.

(Emphasis added.)  The collective bargaining agreement permitted
the parties to modify the deadlines for filing grievances in this
manner:
          The failure of either party to follow the
above time limits shall result in resolution of the grievance
against the party failing to meet the time limits.  The parties may
mutually agree in writing to modify the time limits in any step of
the Grievance Procedure.

(Emphasis added.)

          The critical issue, then, is whether the June 4
memorandum applied to all grievances arising out of Operation
Valley Thunder or just those complaints arising after the police
department management and APDEA executed the memorandum.  The
superior court concluded as a matter of law that the authors of the
memorandum -- representatives from APDEA and the police department
-- did not intend the waiver to apply retroactively.  We disagree.
          First, the agreement itself contains no language limiting
its application to prospective grievances.  The memorandum
memorializing the agreement states that for "any and all"
grievances arising out of Operation Valley Thunder, "[t]he 90 day
requirement for filing of grievances will be waived." Second, the
timing and course of events leading to the memorandum of agreement
indicate that the memorandum was indeed a response to Larsen and
Cooper's complaints and that the police department intended it to
cover Larsen and Cooper's complaints.
          In support of its argument that the waiver of the ninety-
day requirement did not cover Larsen and Cooper's grievance, MOA
relies heavily on the testimony of MOA and APDEA representatives
regarding their subjective intent in crafting the memorandum of
agreement.  For example, Captain Walker maintained in an affidavit
that "[t]here was no mutual agreement between APDEA and the
Municipality by this memo to excuse any untimely filing of a
grievance related to Operation Valley Thunder case assignment that
may have been required to have been filed in early April, 1991
. . . ." But while we strive to give effect to the intention of
the parties to a contract, "looking to their testimony as to their
subjective intentions or understandings will normally accomplish no
more than a restatement of their conflicting positions."[Fn. 9] 
Instead, we will look to "express manifestations of each party's
understanding of the contract in attempting to give effect to the
intent behind the agreement."[Fn. 10]  Both Captain Tom Walker and
Officer Alan Kraft, the drafters of the memorandum, agreed that
"[t]he June 4, 1991 memo was drafted because [they] had just heard
oral complaints a few days before from Officers Larsen and Cooper
regarding the assignment of officers to the DEA/APD Operation
Valley Thunder Drug Task Force."
          Moreover, Larsen and Cooper "were asked to keep the
grievance secret until the matter could be heard later so as not to
compromise the Task Force." Cooper's deposition testimony asserts
that he and Larsen did speak to a steward and attempt to file a
grievance:
               We got a shop steward, we talked about
it, filed a grievance.  During the course of Valley Thunder
operation, while it was going on, Captain Walker came to the unit,
told us the chief was displeased with us because we filed a labor
action.  Fred Thomas, who was the local administrator of the Drug
Enforcement Administration, had threatened to kick everybody --
everybody being the Anchorage Police Department -- out of the task
force, because he felt that by us filing a grievance, we [were]
jeopardizing the integrity of the task force . . . .

               At that point we agreed.  Al Kraft showed
up.  I believe he was the president at the time.  So we negotiated
[that] we would suspend the grievance until after the case was
concluded.

Thus, it is evident from both the waiver language and the extrinsic
evidence that the June 4, 1991 memorandum's purpose was to prevent
Cooper and Larsen's grievance from becoming public and compromising
the security of the covert operation.  Because the record does not
show that any other employees filed a grievance based on the
operation, there is no basis for thinking that the memorandum had
any purpose other than to address Larsen and Cooper's complaints.
[Fn. 11]
          Larsen and Cooper also point to MOA's actions, which can
only be reasonably interpreted as suggesting that MOA believed the
complaint was not time barred.  MOA did not object to the grievance
as untimely before it scheduled an arbitration hearing on the
matter; [Fn. 12] indeed, MOA's conduct in setting and confirming
the arbitration dates implies that MOA intended the memorandum to
waive the normal ninety-day deadline for all claims pertaining to
Operation Valley Thunder.
          In light of the language of the memorandum of agreement
and the virtually undisputed evidence on this issue, we conclude as
a matter of law that the grievances were timely.
     C.   A Genuine Issue of Material Fact Exists as to Whether the
Assignment Should Have Been Based on Seniority.
          Larsen and Cooper argue that three separate provisions of
the collective bargaining agreement required MOA to make the
Operation Valley Thunder assignments on the basis of seniority. 
They point to the agreement's provisions on job assignments, shift
changes, and overtime.  The trial court granted summary judgment on
all three claims.  We review each claim in turn.
          1.   Article IX, sec. 7: job assignments
          Larsen and Cooper argue that because the Operation Valley
Thunder assignments were job assignments, Loy should have made them
according to seniority.  Article IX, sec. 7 of the collective
bargaining agreement requires that job assignments be made on the
basis of seniority and defines the term "job assignment"as "the
transfer of an employee from one section or division to another."
[Fn. 13]  Both the APDEA Executive Board and MOA, the actual
parties to the collective bargaining agreement, claim that the
Operation Valley Thunder placements were not job assignments.
          MOA maintains that the term "job assignment"in Article
IX, sec. 7 refers only to transfers within the Anchorage Police
Department.  Because the officers assigned to Operation Valley
Thunder also "continued to work on case assignments from the APD
Metro Section in addition to their case assignment to Operation
Valley Thunder,"MOA contends that they were not transferred and
that their assignment to the new operation did not constitute a
"job assignment"under the agreement.  But to the extent that this
is evidence of MOA's subjective intent, it is of little value as it
"reflects only a restatement of [its] position in this litigation
to which little, if any, weight should be given."[Fn. 14]
          The vice president of APDEA explained in his deposition
that the APDEA Executive Board felt "it was not a job assignment
but more of a case assignment." But this testimony was provided to
explain why APDEA decided not to take the officers' grievance to
arbitration, and did not address APDEA's intent in drafting or
agreeing to the contract term.  On the other hand, evidence that
the officers continued to be treated as members of the narcotics
enforcement section is probative of MOA's position.
          Larsen and Cooper cite various instances in the record
where the term "job assignment"is used with reference to special
task force assignments.  In evaluating the performance of an
officer assigned to a DEA Drug Enforcement Task Force in Anchorage,
MOA referred to his position as a "job assignment." Gerald Weeks,
who replaced Loy as Metro command officer, also stated his belief
that the Operation Valley Thunder placements were job assignments
and that Cooper and Larsen "should have been appointed to the Task
Force if they had more seniority than [Hooks and O'Brien]." When
deposed, Loy, the officer who made the assignments, used the
description "job assignment"in reference to Operation Valley
Thunder.
          But it is not clear that each cited use of the term "job
assignment"is tied to the Article IX, sec. 7 definition of that
term. 
For example, the performance evaluation relied upon by Larsen and
Cooper states that the officer "has performed his job assignments
as a Detective with the Anchorage Police Department in an
acceptable manner . . . ." This use of the term may simply equate
"job assignment"with "task,"rather than an inter-division or
section transfer.  Similarly, Loy's reference to "a job assignment
directed to my unit"was equated with "those tasks that were given
to me to fill." But Weeks refers to "job assignments"in the
narrow contract sense and supports appellants' position.
          Furthermore, appellants submitted documentary evidence
including a series of grievance decisions indicating that
assignments to special task forces were considered "job
assignments"in the contract sense.  These documents may reflect a
course of performance or special usage that may be of considerable
value in deciding what the contract means. [Fn. 15]
          On the record before us, the meaning of the term "job
assignment,"defined in the contract as a transfer from one section
or division to another, is uncertain.  Just what a "transfer"is
within the meaning of the contract is unclear.  Whether Hooks and
O'Brien were transferred to a new section or division and thus
received new job assignments is a question that is partly fact
dependent.  As the facts before us point in conflicting directions,
we conclude that the determination of this question requires
additional litigation.
          2.   Article IX, sec. 5: shift preferences
          Larsen and Cooper contend that the Operation Valley
Thunder assignments should have been based on seniority because
they entailed "shift changes."[Fn. 16]  Article IX, sec. 5 of the
agreement provides that seniority must govern "[f]or purposes of
shift preference"and that shift changes "will be allowed at the
beginning of each quarter,"as long as an employee makes a timely
request. [Fn. 17]  The superior court determined the assignments to
Operation Valley Thunder did not qualify as shift changes because
supervisors need only honor officers' shift preferences at the
beginning of each quarter.  For this reason, the superior court
concluded that any changes in shift resulting from the Operation
Valley Thunder assignment did not fall within the seniority
requirements of Article IX, sec. 5 of the collective bargaining
agreement.  The court reasoned that the shift preference provision
applied only to a quarterly process in which APD officers bid on
different shifts.  We agree.
          It is undisputed in the record before us that the
Operation Valley Thunder assignments do not represent the kind of
shift changes contemplated by the plain language of Article IX,
sec. 5 of the agreement.  Instead, sec. 5 refers to honoring the
shift
preferences of officers at the beginning of each quarter when
schedules are set.  Thus, we conclude that the superior court
properly found that Operation Valley Thunder did not qualify as a
shift change under Article IX, sec. 5.
          3.   Article IX, sec. 6: overtime
          The officers contend that because Operation Valley
Thunder potentially involved overtime work, Loy should have made
the assignments on the basis of seniority.  MOA responds that
Article IX, sec. 6 refers only to "special events overtime"for
work
at such events as Fur Rendezvous, hockey games, or concerts. 
According to MOA, sec. 6 does not govern work performed as part of
an
officer's regular assignment that happens to have irregular hours,
such as Operation Valley Thunder.
          Article IX, sec. 6 provides that "[a]ll work performed
outside of the regularly scheduled workday shall be on a position
seniority basis . . . .  These special assignments will be posted
no less that four (4) days prior to the event, where possible."
(Emphasis added.)  The agreement's use of the terms "special
assignment"and "event"in sec. 6 supports MOA's interpretation. 
Although the officers assigned to Operation Valley Thunder may have
been required to work different hours than other officers in the
Metro unit, their assignment was not to a special event scheduled
outside the regular workday.  
          Moreover, as MOA notes, if sec. 6 were read to require
seniority to govern whenever the potential for overtime exists,
management of the department would be difficult at best.  The vice
president of APDEA articulated this concern:
          [T]here was an overriding feeling that if
every assignment that was given out within a section was based on
the amount of potential overtime that could maybe be made, it would
be impossible, really, to run the department and to manage the way
we just go about doing our jobs.  And it would be a real can of
worms in terms of the everyday functions, not to mention the intent
of the language there.  

Thus, we uphold the superior court's grant of summary judgment on
this issue.
IV.  CONCLUSION
          We conclude that the officers timely challenged the
assignments and that whether Operation Valley Thunder was a job
assignment governed by seniority presents a material issue of fact. 
Thus, we REVERSE and REMAND to the superior court for further
proceedings consistent with this opinion. [Fn. 18]


                            FOOTNOTES


Footnote 1:

     Andrews v. Wade & De Young, Inc., 950 P.2d 574, 575 (Alaska
1997).


Footnote 2:

     Id.


Footnote 3:

     See id.


Footnote 4:

     See Alaska Housing Fin. Corp. v. Salvucci, 950 P.2d 1116, 1119
(Alaska 1997).


Footnote 5:

     Stepanov v. Homer Elec. Ass'n, 814 P.2d 731, 734 (Alaska 1991)
(quoting Mitford v. de Lasala, 666 P.2d 1000, 1005 (Alaska 1983)).


Footnote 6:

     Municipality of Anchorage v. Gentile, 922 P.2d 248, 256
(Alaska 1996).


Footnote 7:

     Johnson v. Schaub, 867 P.2d 812, 818 (Alaska 1994) (quoting
Alaska Diversified Contractors, Inc. v. Lower Kuskokwim Sch. Dist.,
778 P.2d 581, 584 (Alaska 1989)).


Footnote 8:

     MOA concedes that this claim under the collective bargaining
agreement is actionable, even though Larsen and Cooper never
demonstrated that the union breached its duty to represent them
fairly in the grievance procedures.  Under federal labor law, an
employee must show such a breach before the employee may directly
sue his employer for wrongful discharge.  See Vaca v. Sipes, 386
U.S. 171, 186 (1967).

          We declined to adopt this rule in Alaska in wrongful
discharge cases because an Alaska citizen has a "sufficient
property interest"in continuing employment to raise due process
concerns.  Casey v. City of Fairbanks, 670 P.2d 1133, 1138 (Alaska
1983).  Requiring an employee to prove a breach of the duty of fair
representation in such cases would deprive the employee of "any
review of the decision to terminate him unless he were able to
prove that the Union acted wrongfully in refusing to process his
grievance." Id.  Because the Union's decision could be "erroneous
without being arbitrary, discriminatory or in bad faith,"we
reasoned that this requirement places too great a burden upon an
employee's right to due process.  Id.  We did not decide in Casey,
however, whether we would adopt the federal rule for other types of
claims covered by a collective bargaining agreement.

          Here, MOA does not argue that the rule in Casey should be
limited to significant employment actions, such as termination,
rather than allowing an employee to take any grievance under a
collective bargaining agreement directly to court.  Accordingly, we
do not address the issue at this time.


Footnote 9:

     Day v. A & G Constr. Co., Inc., 528 P.2d 440, 444 (Alaska
1974).


Footnote 10:

     Peterson v. Wirum, 625 P.2d 866, 870 (Alaska 1981).


Footnote 11:

     Although Larsen and Cooper may not have filed a formal
grievance within 90 days, the former MOA director of management
services, Neil Koeniger, noted that the grievance process was
informal and that "there are often no series of correspondence or
notices regarding issues."


Footnote 12:

     The scheduled arbitration never actually took place because
APDEA decided that the grievance lacked merit. 


Footnote 13:

     Article IX, sec. 7 provides in its entirety:

          Job assignments shall be made on the basis of
qualifications.  Qualifications being equal, job assignments shall
be made on the basis of position seniority.  For the purpose of
this Section, job assignment is defined as any transfer of an
employee from one section or division to another.  Job assignments
shall initially be offered within the division in which the vacancy
occurs.  If positions cannot be filled by job assignment within a
division, they shall be filled on a department-wide basis.  Any
disputes arising from job assignments shall be subject to the
Grievance Procedure.


Footnote 14:

     Western Pioneer, Inc. v. Harbor Enters., Inc., 818 P.2d 654,
657 (Alaska 1991); see also Peterson v. Wirum, 625 P.2d at 870.


Footnote 15:

     See Restatement 2d Contracts sec. 202(4) and (5).


Footnote 16:

     Larsen and Cooper primarily rely on the deposition testimony
of Officer O'Brien.  O'Brien stated that when she was assigned to
Operation Valley Thunder, her "shift changed from afternoons to
mornings." MOA contends that we should not consider this testimony
because Larsen and Cooper did not present it before the superior
court granted summary judgment.  Because we conclude that no
genuine issue of material fact exists even with this testimony, we
need not address the issue.


Footnote 17:

     Article IX, sec. 5(a) provides in its entirety: 
     
          For purposes of shift preference, days off,
layoff, and rehire, position seniority shall govern.  For the
purposes of preference of days off and preference of shifts,
position seniority will prevail and changes will be allowed at the
beginning of each quarter if the requested change is made by the
fifteenth (15th) day of the preceding month and will be allowed
within position classification.  The change of days off and shifts
other than at the beginning of each quarter shall be allowed with
the approval of the Association and the Chief of Police.


Footnote 18:

     Larsen and Cooper also dispute the award of attorney's fees to
MOA.  But because we are remanding the case for further
proceedings, we need not address this issue.