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Anchorage Police Dep't. Employee Ass'n. v. Anchorage (6/6/97), 938 P 2d 1027
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Notice: This opinion is subject to formal 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
ANCHORAGE POLICE DEPARTMENT )
EMPLOYEES ASSOCIATION, ) Supreme Court No. S-6870
)
Appellant, )
) Superior Court No.
v. ) 3AN-93-11564 CI
)
MUNICIPALITY OF ANCHORAGE, ) O P I N I O N
)
Appellee. ) [No. 4827 - June 6, 1997]
)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Joan M. Woodward, Judge.
Appearances: Will Aitchison, Portland,
Oregon, for Appellant. Leslie K. Schumacher, Assistant Municipal
Attorney, and Mary K. Hughes, Municipal Attorney, Anchorage, for
Appellee.
Before: Compton, Chief Justice, Rabinowitz,
Matthews, and Eastaugh, Justices. [Fabe, Justice, not
participating.]
PER CURIAM.
The judgment of the superior court, on appeal from the
Municipality of Anchorage Employee Relations Board, is AFFIRMED for
the reasons expressed in its Decision on Appeal, attached hereto as
an Appendix. [Fn. 1] IN THE SUPERIOR COURT FOR THE STATE OF ALASKA
THIRD JUDICIAL DISTRICT
ANCHORAGE POLICE DEPARTMENT )
EMPLOYEES ASSOCIATION, )
)
Appellant/Petitioner, )
)
vs. )
)
MUNICIPALITY OF ANCHORAGE, )
)
Appellee/Respondent. )
)
Case No. 3AN 93-11564 CI
DECISION ON APPEAL
The Anchorage Police Department Employees Association
("APDEA") has appealed a decision of the Employee Relations Board
which denied the arbitrability of a grievance filed by APDEA. The
court has reviewed the briefs, authorities cited therein, and the
record.
On August 17, 1992, the Municipality adopted a policy
whereby warrants section personnel were to be transferred to patrol
on a rotational basis. The policy was justified by the police
department's determination that such transfers were required to
insure that warrants officers maintained their proficiency as
patrol officers. APDEA grieved this policy pursuant to Article V,
Section 2(N) of the collective bargaining agreement. That
provision states, in relevant part:
If the Department implements a change in a
current policy or procedure over which the Employer has a mandatory
obligation to bargain . . . the designated Association
Representative may grieve such change . . . .
The Municipality declined to process the grievance. An unfair
labor practice complaint was filed with the Employee Relations
Board. The Board hired a hearing officer who concluded, without
conducting evidentiary proceedings, that the complaint was
unfounded. The Board agreed. This appeal followed.
The appeal raises four issues: (1) Should the Board and
court be deciding issues of arbitrability, or should such issues be
resolved by the arbitrators themselves? (2) Is the rotational
transfer of warrants officers into patrol a mandatory bargaining
subject? (3) Was there a "past practice"of not rotating warrants
officers into the patrol section? and (4) Was the hearing officer
required to conduct a hearing in this case?
The court finds, first, that it is authorized and
required to resolve the threshold issue of arbitrability. State v.
Public Safety Employees Ass'n, 798 P.2d 1281, 1285 (Alaska 1990).
In this case, that issue depends on whether assignment of officers
is a mandatory subject for bargaining.
The cases which have addressed this issue generally
distinguish between disciplinary versus non-disciplinary transfers.
The former are subject to the grievance procedure; the latter fall
within the realm of management prerogatives. E.g., City of Perth
Amboy, 13 NJPER P 18037 (1986). The cases further distinguish
between management's unfettered right to assign officers to
different duties, versus employees' rights to grieve issues
pertaining to pay and other benefits. E.g., Township of Wayne, 18
NJPER P 23016 (1991).
Management prerogatives derive from contract provisions
such as that found in Article II, Section 1 of the collective
bargaining agreement here. That section states: "It is recognized
that the Municipality retains the right, except as otherwise
provided in this agreement, to manage the affairs of the
Municipality and direct its work force." The only section in the
agreement directly pertaining to transfers is Article VI,
Section 14. The pertinent part of that provision reads:
Job assignments shall be made on the basis of
qualifications, as determined by the Employer. Qualifications
being equal, job assignments shall be made on the basis of
department seniority, save that an employee may be involuntarily
transferred for non-disciplinary reasons to a different job
assignment within a division under the following circumstances:
(1) based upon the needs of the Department as
determined by the Chief of Police, or his/her designee, no more
than once each calendar year . . . . Any involuntary transfer
shall be subject to review under the grievance and arbitration
provisions of this contract and shall not be upheld if determined
to be arbitrary, capricious, discriminatory or made in bad faith.
APDEA did not grieve pursuant to this section. APDEA did
not claim in its grievance that the transfers were to a different
division or that they were not based on the needs of the Department
as determined by the Chief of Police. Nor did the union argue that
particular transfers were arbitrary, etc. Yet there is no other
provision in the agreement restricting management's prerogative in
regard to transfer policies. Accordingly, there is no basis for
finding that such transfer policies constitute a mandatory subject
for bargaining.
In light of the court's conclusion above, there is no
need to ascertain whether there was [ ] a "past practice"that was
changed so as to trigger the right to grieve. By way of dictum,
the court determines, however, that such analysis would [be] part
of the merits of grievance resolution, and would not be an
appropriate subject for the Board or court to address.
Appellant has not indicated any evidence that would have
been relevant on the question of mandatory bargaining subject.
Since resolution of that question against APDEA in this case is
conclusive, there was no need for the Board to conduct an
evidentiary hearing.
Based on the foregoing, IT IS ORDERED that the Board's
decision is AFFIRMED.
DATED this 23rd day of December, 1994.
/s/ J. M. Woodward
JOAN M. WOODWARD
Superior Court Judge
FOOTNOTES
Footnote 1:
The decision has been edited in conformity with Supreme Court
procedural standards.
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