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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Anchorage Police Dept Command Officer's Assoc. v. Municipality of Anchorage (03/07/2008) sp-6236

Anchorage Police Dept Command Officer's Assoc. v. Municipality of Anchorage (03/07/2008) sp-6236, 177 P3d 839

     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,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA

ANCHORAGE POLICE )
DEPARTMENT COMMAND ) Supreme Court No. S-12284
OFFICERS ASSOCIATION, )
) Superior Court No. 3AN-05-04613 CI
Appellant, )
) O P I N I O N
v. )
) No. 6236 March 7, 2008
MUNICIPALITY OF ANCHORAGE, )
)
Appellee. )
)


          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Mark Rindner, Judge.

          Appearances:  Kevin T. Fitzgerald, Ingaldson,
          Maassen  &  Fitzgerald, P.C., Anchorage,  for
          Appellant.  Mark A. Ertischek, Anchorage, for
          Appellee.

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

          FABE, Chief Justice.

I.   INTRODUCTION
          The   Anchorage  Police  Department  Command   Officers
Association (APDCOA) petitioned the Anchorage Municipal  Employee
Relations  Board  (the Board) for recognition as  the  collective
bargaining   representative   for   fourteen   Anchorage   Police
Department lieutenants and captains.  The Board dismissed APDCOAs
petition   and  similarly  denied  its  subsequent   motion   for
reconsideration  or  supplementation  of  the   record.    APDCOA
appealed  to  the  superior  court,  which  affirmed  the  Boards
decision.   Because  substantial  evidence  supports  the  Boards
decision   that  Anchorage  Police  Department  lieutenants   and
captains  are  supervisors and are thus  exempt  from  collective
bargaining, we affirm.
II.  FACTS AND PROCEEDINGS
          The   Anchorage  Police  Department  Command   Officers
Association   petitioned  the  Board  for  recognition   as   the
collective  bargaining  representative  for  fourteen   Anchorage
Police  Department lieutenants and captains on  March  30,  2004.
The proposed bargaining unit is meant to fill a perceived gap  in
police   department  employee  representation:    lower   ranking
employees  are  represented  by the Anchorage  Police  Department
Employees  Association  Union, while  higher  ranking  employees,
being executives, are exempt from collective bargaining.  APDCOAs
initial  submission  to the Board included a petition  signed  by
fourteen   lieutenants   and   captains,   as   well   as   class
specifications  and  duty descriptions  for  the  lieutenant  and
captain positions.
          Reviewing  these  specifications and descriptions,  the
Board   determined   that  lieutenants   and   captains   perform
supervisory   tasks.   Because  supervisors   are   exempt   from
collective  bargaining under the Anchorage Municipal Code,1   the
Board  issued  an  order to show cause why  the  APDCOA  petition
should  not  be  dismissed on that basis.  APDCOA  asserted  that
sergeants  play  greater supervisory roles than  lieutenants  and
captains  yet  are  nonetheless members of the  Anchorage  Police
Department  Employees Association Union.  APDCOA  also  contended
that   the   question  whether  captains  and   lieutenants   are
supervisors is a factual one and maintained that lieutenants  and
captains  are not in fact supervisors within the meaning  of  AMC
3.70.010.  The Board conducted a hearing on this question on July
15, 2004.
          APDCOA   and   the   Municipality  of  Anchorage   both
participated  in  the  hearing and submitted timely  post-hearing
briefs.   The  Board dismissed APDCOAs petition in a final  order
dated December 20, 2004 based on a number of grounds.  First, the
Board  found  APDCOA  had not met its burden  of  fulfilling  the
requirements  set  out in AMC  3.70.060A.  This statute  requires
the  Board  to determine appropriate bargaining units considering
such  factors  as community of interest, wages, hours  and  other
working  conditions  of the employees involved,  the  history  of
collective  bargaining and the desires of  the  employees,  while
also  mandating that bargaining units be as large  as  reasonably
possible,   avoiding   unnecessary  fragmentation.    The   Board
concluded  that  though  APDCOA had  proven  that  the  employees
desired  representation through its petition, it had  not  proven
the  requisite  community of interest, wages,  hours,  and  other
working  conditions amongst employees, nor had it  established  a
bargaining  history.   Viewing these as individual  factors,  the
Board  determined that APDCOA had therefore failed to prove  five
of  what  it  interpreted  as  seven  prongs  set  forth  in  AMC
3.70.060A.  The  Board  also  found  that  captains  (though  not
          lieutenants) were confidential employees exempt from collective
bargaining  under AMC  3.70.060C(10).  Finally, the  Board  found
that  both  lieutenants  and captains were supervisory  employees
exempt from collective bargaining under AMC  3.70.060C(2).
          Shortly  thereafter, APDCOA filed  a  motion  with  the
Board  for  reconsideration, or in the alternative, to supplement
the  record.   It  contested  the Boards  interpretation  of  the
factors  laid  out  in  AMC  3.70.060A but claimed  that  it  had
nonetheless fulfilled the requirements of the section through the
petition and testimony at the hearing.  As further proof,  APDCOA
appended   affidavits  from  its  members  attesting   to   their
commonality   of  interest,  wages,  hours,  and  other   working
conditions, along with a 1976 Board memorandum recommending  that
the  Municipal  Assembly  approve a bargaining  unit  of  command
police  officers2 to prove bargaining history. The  Board  denied
the  motions  for  reconsideration  and  supplementation  of  the
record.
          APDCOA  appealed to the superior court, asserting  that
the  Board  erred in rejecting the unit.  It challenged  (1)  the
Boards   conclusion  that  the  unit  failed  to   prove   enough
commonality  of  interest factors; (2) the  Boards  finding  that
lieutenants  were  supervisory employees  and  thus  exempt  from
collective  bargaining; and (3) the Boards finding that  captains
were  both  supervisory  and confidential employees  exempt  from
collective  bargaining.  The superior court affirmed  the  Boards
decision.   Although  the superior court questioned  the  factor-
counting  approach  that the Board employed in  interpreting  AMC
3.70.060A,   the  court  found  that  the  Board  enjoyed   broad
discretion  in  determining  the  appropriateness  of  collective
bargaining units and declined to reweigh the evidence.
          APDCOA  appeals, renewing its arguments that the  Board
erred   in   deciding   (1)  that  Anchorage  Police   Department
lieutenants  and captains are supervisors within the  meaning  of
the Code; (2) that captains are confidential employees within the
meaning  of  the  Code; and (3) that APDCOA failed  to  show  the
required  commonality of interests to qualify as  an  appropriate
bargaining unit.
III. STANDARD OF REVIEW
          When   the  superior  court  acts  as  an  intermediate
appellate  court,  we  independently review  the  merits  of  the
administrative determination.3  The standard we employ to  review
administrative  decisions depends on the nature  of  the  appeal.
For  questions of fact, we review administrative decisions  under
the  substantial evidence test, examining whether those  findings
are  supported  by  such relevant evidence as a  reasonable  mind
might  accept  to  support a conclusion.4  For questions  of  law
requiring  agency  expertise, we review administrative  decisions
under  the  reasonable  basis  test,  deferring  to  the  agencys
decision unless it is plainly erroneous and inconsistent with the
regulation.5
IV.  THE  BOARD  DID  NOT  ERR IN DECIDING THAT  LIEUTENANTS  AND
     CAPTAINS  ARE  SUPERVISORY EMPLOYEES EXEMPT FROM  COLLECTIVE
     BARGAINING.
     
          Anchorage  Municipal  Code  3.70.060C(2)  exempts  from
          collective bargaining [a]ll supervisory employees as designated
by  the  board  upon  petition  of the  municipality.   Anchorage
Municipal Code  3.70.010 defines supervisory employee as
          an individual having responsibility on behalf
          of  the municipality regularly to participate
          in  the  performance of some or  all  of  the
          following  functions with  respect  to  other
          employees:  to hire, transfer,  suspend,  lay
          off,   recall,  promote,  discharge,  assign,
          reward,   discipline,   direct   or    adjust
          grievances, or effectively to recommend  such
          action,  if,  in  connection  with  []   such
          functions,    the    exercise     of     such
          responsibility is not of a merely routine  or
          clerical nature but requires the exercise  of
          independent judgment.
          
          Whether  Anchorage  Police Department  lieutenants  and
captains  are  supervisory employees and  therefore  exempt  from
collective  bargaining  is a question of fact,  which  we  review
under  the  substantial  evidence test.6   The  job  descriptions
submitted  by  APDCOA  for the captain and  lieutenant  positions
support the Boards finding that these are supervisory roles.
          According   to  the  class  specification,   a   police
lieutenant  [s]upervises  and  performs  administrative  work  in
commanding  an  assigned  shift, or in a  comparable  specialized
function.   The  specification  also  states  that  a  lieutenant
[p]rovides  supervision for and evaluation of subordinate  police
personnel;  [c]ommands  an assigned shift or  specialized  police
function;  [i]nspects the performance of [p]atrol [o]fficers  and
[s]ergeants on duty; . . . [s]upervises and participates  in  the
investigation of major incidents; [and p]lans and directs special
operations.   The  class  specification for  a  lieutenant  lists
knowledge of supervisory police work, skills in supervision,  and
the ability to [p]lan, assign, supervise, and review the work  of
subordinate  police  personnel,  as  required.   Similarly,   the
position  description assigns thirty percent of  the  lieutenants
time  to  work  as a  second level supervisor by supervising  and
directing the shift [s]ergeants (first line supervisors)  in  the
implementation  of  their  duties as direct  supervisors  of  all
assigned  [d]etectives,  and also provides  that  the  lieutenant
[r]eviews  and  resolves labor/management disputes and  [r]eviews
and  approves  disciplinary procedures a[t] all  levels,  through
termination  actions for employees.  Moreover,  item  23  of  the
position  description, entitled supervisory responsibilities,  is
checked  yes  to  reflect that the position  directly  supervises
others   on   a   regular   basis.   The  positions   supervisory
responsibilities include the authority to hire,  assign,  reward,
promote,   transfer,   lay   off,   discipline,   and   discharge
subordinates as well as to settle grievances.
          The  class specification for the captain position  also
characterizes  captains  as  supervisors.   The  captains  duties
include assignment of personnel and equipment [and] discipline of
subordinate  employees.  Captains are charged with  [p]rovid[ing]
          the full range of supervision for subordinate personnel and
[c]oordinat[ing]  the  investigation of allegations  of  employee
misconduct.   And  in  another section, the  class  specification
demands that captains have the ability to plan and supervise work
of  subordinate personnel, while the position description devotes
ten percent of the captains time to reviewing and resolving labor
disputes,  coordinating the investigation of employee misconduct,
and administering appropriate discipline.  Once again, item 23 is
checked  yes,  indicating that this position directly  supervises
others on a regular basis.  This includes the authority to  hire,
assign,  reward,  promote,  transfer, lay  off,  discipline,  and
discharge subordinates as well as to settle grievances.
          Several  witnesses testified before the Board regarding
this  issue, including Lieutenant Lorraine Shore, Captain  Thomas
Nelson,  Chief  of  Police Walter Monegan,  and  Elizabeth  Hill,
Director  of Human Resources for the Anchorage Police Department.
And  APDCOA has conceded that its members performed some  limited
functions[,]  which  could  otherwise be  considered  supervisory
under  the  [C]odes  definition.  But APDCOA maintains  that  the
testimony at trial showed that these supervisory roles  were  not
performed regularly or with independent judgment, as the  statute
requires.   Given  this  acknowledgment, we  are  left  with  the
following question:  does substantial evidence support the Boards
finding  that lieutenants and captains perform these  supervisory
duties  regularly  and  with  independent  judgment?   The  class
specifications and position descriptions detailed  above  suggest
that the answer is yes, and the testimony and arguments presented
at  the  hearing  support  the Boards finding.   Although  APDCOA
points  to  some  testimony that these duties are performed  less
than regularly or without independent judgment, the Board did not
find  that  testimony  credible.   As  the  Board  put  it:    We
acknowledge  that  APDCOAs  witnesses  tended  to  minimize   the
importance  of  the duties they performed.  We  nonetheless  find
that the weight of the evidence establishes that lieutenants  and
captains   perform   supervisory  duties   on   behalf   of   the
Municipality,   and  that  they  use  independent   judgment   in
performing those duties.
          APDCOA describes as limited, constrained, and irregular
its  members  involvement in transfers, promotions,  assignments,
and  discipline,  all tasks defined by the Code  as  supervisory.
APDCOA  also  relies  on cases from other jurisdictions  for  the
proposition   that   a   position  generally   characterized   as
supervisory is not necessarily exempt from collective bargaining.
Beyond the fact that they did not involve the Anchorage Municipal
Code, these cases upheld administrative decisions that particular
employees  were  not  supervisors,  with  some  highlighting  the
special  deference that the administrative body enjoyed  in  this
particular determination.7  Moreover, it does not appear that the
Board  rested on just a general characterization in its  decision
here.  After reading APDCOAs submitted materials and hearing  all
the  testimony, the Board found that the weight of  the  evidence
establishes that the lieutenants and captains perform supervisory
duties   on  behalf  of  the  Municipality,  []  that  they   use
independent  judgment in performing those duties,  and  that  the
          Municipality carried its burden of proof with respect to the
supervisory  status  of  lieutenants and  captains.   Substantial
portions of the evidence found credible by the Board support  its
decision  that the supervisory roles of captains and  lieutenants
are  performed  regularly  and with  independent  judgment.   The
Boards decision is therefore affirmed.8
V.   CONCLUSION
          For  the reasons detailed above, we AFFIRM the decision
of the Anchorage Municipal Employee Relations Board.

_______________________________
     1    AMC  3.70.060C.

     2    No such bargaining unit came to fruition.

     3    State, Pub. Employees Ret. Bd. v. Morton, 123 P.3d 986,
988  (Alaska  2005)  (quoting State,  Dept  of  Natural  Res.  v.
Greenpeace, Inc., 96 P.3d 1056, 1061 (Alaska 2004)).

     4     Collins  v. Arctic Builders, Inc., 31 P.3d 1286,  1289
(Alaska 2001).

     5     Greenpeace,  96 P.3d at 1061 n.10 (internal  citations
omitted).

     6    Collins, 31 P.3d at 1289.

     7     See,  e.g., Providence Alaska Med. Ctr. v. Natl  Labor
Relations  Bd., 121 F.3d 548, 551 (9th Cir. 1997) (upholding  the
Boards  determination  that employee was  not  a  supervisor  and
noting  that  [b]ecause  the Board has expertise  in  making  the
subtle   and   complex  distinctions  between   supervisors   and
employees, . . . the normal deference [we] give to the  Board  is
particularly strong when it makes those determinations  (internal
citation omitted)); J.L.M., Inc. v. Natl Labor Relations Bd.,  31
F.3d  79,  82  (2d Cir. 1994) (upholding the Boards determination
that  employee was not a supervisor and noting that [t]he  Boards
findings  regarding supervisory determinations  are  entitled  to
special weight ).

     8     Because we conclude the Board did not err in  deciding
that  lieutenants and captains are supervisors within the meaning
of  the Code, they are exempt from collective bargaining, and  we
need not reach the other arguments on appeal.

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