Case Nos. 96-476-ULP & 96-487-ULP (Consol.)

ALASKA LABOR RELATIONS AGENCY
3301 EAGLE STREET, SUITE 208
P.O. BOX 107026
ANCHORAGE, ALASKA 99510-7026
(907) 269-4895
Fax (907) 269-4898

Case Nos. 96-476-ULP & 96-487-ULP (Consol.)

DECISION AND ORDER NO. 221

Digest: (1) The totality of the City’s conduct regarding the Fire Fighters’ grievances showed bad faith in violation of AS 23.40.110(a)(1) and (5).

(2) Because the City Council did not approve the agreement settling grievance 95-1 and the City did not perform the conditions set out in the agreement, the Fire Fighters are not required to withdraw the grievance and may proceed through the grievance steps set out in the agreement, culminating in arbitration.

DECISION

Statement of the Case

On November 30, 1995, the Fairbanks Fire Fighters Association, Local 1324, IAFF (Fire Fighters), filed an unfair labor practice charge against the City of Fairbanks concerning the City’s processing of grievances. On December 22, 1995, the Fire Fighters filed a second unfair labor practice charge against the City for breach of the duty of good faith in AS 23.40.110(a)(5) for breach of an agreement settling a grievance. The Agency concluded its investigation of the charges in 96-476-ULP on August 20, 1996, and issued a notice of accusation under AS 23.40.110(a)(1) and (5) against the City. The case in 96-476-ULP was set for hearing initially on December 10, 11, and 12, 1996. On November 4, 1996, the Agency concluded its investigation of the charges in 96-487-ULP and issued a notice of accusation under AS 23.40.110(a)(5). The Agency consolidated the two cases and set new hearing dates of April 22, 23, and 24, 1997. The cases were heard on April 22 and 23, 1997, in the City Council Chambers, Fairbanks, Alaska. The record closed on April 23, 1997.

Panel: Blair E. Schad and Karen J. Mahurin, Members, participating in person, and James W. Elliott, Member, participating on the basis of a review of the record.

Appearances: Brett M. Wood, attorney, and Mark Drygas, business agent, for petitioner Fairbanks Fire Fighters Association, Local 1324, IAFF; and Paul J. Ewers and John M. Eberhart, deputy City attorneys, for respondent City of Fairbanks.

Procedure in this case is governed by the Administrative Procedure Act, AS 44.62.330 -- 44.62.630, AS 23.40.130, and 8 AAC 97.340. Hearing examiner Jan Hart DeYoung presided.

Issues

Case no. 96-476-ULP:

1. Did the City of Fairbanks violate AS 23.40.110(a)(1) and (a)(5) by refusing to arbitrate certain grievances?

2. Did the City of Fairbanks violate AS 23.40.110(a)(1) and (a)(5) by stating the City reserves the right to decline to fund any monetary award by an arbitrator or does Fairbanks Police Department Chapter, Alaska Public Employees Ass’n v. City of Fairbanks, 920 P.2d 273 (Alaska 1996) justify this statement?

3. Does the collective bargaining agreement entitle the Fire Fighters to arbitrate every grievance and to arbitrate each grievance separately?

4. Does the Alaska Labor Relations Agency have authority to order arbitration?

5. Does FGC 16.15.101 have any impact on the grievance mechanism in the collective bargaining agreement?

6. If the City did commit an unfair labor practice, what is the appropriate remedy?

Case no. 96-487-ULP:

7. Did the parties reach a settlement agreement of grievance 95-18?

8. Are there any defenses to the enforcement of the grievance settlement?

9. Is the City's breach of the settlement agreement a refusal to bargain in good faith in violation of AS 23.40.110(a)?

10. If the City did commit an unfair labor practice, what is the appropriate remedy?

Summary of the Evidence

A. Exhibits.

Fairbanks Fire Fighters Association, Local 1324, IAFF offered the following exhibits, which were admitted into the record:

1. Collective Bargaining Agreement (Jan. 1, 1993);

2. Alaska Public Employees Ass’n, Fairbanks Police Dep’t Chapter v. City of Fairbanks, Case no. 4FA-95-2257-Civil (Super. Ct., Feb. 21, 1997) (judgment);

3. P. Cole, Letter to M. Drygas Re: 95-03, 95-05, 95-06, Duncan (June 9, 1995);

4. Grievance 95-13 documents (various);

5. Grievance 95-14 documents (various);

6. Grievance 95-16 documents (various);

7. Grievance 95-18 documents (various);

8. M. Drygas, letter to P. Cole, Re: Grievances (Aug. 30, 1995);

9. P. Cole, letter to M. Drygas, Re: Letters of 8/28/95 and 8/30/95 (Sept. 1, 1995);

10. Grievance 95-21 documents (various);

11. Grievance 95-22 documents (various);

12. Grievance 95-25 documents (various);

13. Grievance 95-26 documents (various);

14. M. Drygas, letter to J. Hayes (Dec. 7, 1995 );

15. J. Hayes, letter to M. Drygas (Dec. 8, 1995 );

16. Opinion and Award, Grievance 94-21 ("1st phase" ) (Arbitrator Robert W. Landau, Nov. 7, 1995);

17. Opinion and Award; Grievance 94-21 ("2nd phase" ) (Arbitrator Robert W. Landau, Oct. 28, 1996);

18. Recap Fees and Costs Paid, Grievance 94-21 (undated.);

19. Letter of Understanding "addendum B" (Dec. 30, 1992);

20. Letter of Agreement (Sept. 11, 1995);

21. Letter of Understanding (May 4, 1994) (disciplinary actions);

22. Letter of Understanding (June 6, 1994);

23. Letter of Understanding (May 4, 1994) (standby time);

24. Letter of Understanding (May 4, 1994) (priority rehire);

25. Letter of Understanding (May 4, 1994) (overtime assignment procedures);

26. Waiver (June 8, 1995);

27. Letter of Understanding (Mar. 15, 1994);

28. Letter of Agreement (July 1, 1992);

29. Letter of Understanding (Jan. 29, 1992);

30. Settlement Agreement, Grievance 92-03 (Feb. 17, 1993);

31. Settlement Agreement, Grievance 93-04 (Apr. 15, 1994);

32. Settlement Agreement, Grievance 95-02/92-10 (July 24, 1995);

33. Settlement Agreement, Grievance 92-10 (July 24, 1995); and

34. Settlement Agreement, Grievance 93-04 (Apr. 15, 1994).

The City of Fairbanks offered the following exhibits, which were admitted into the record:

A. J. Hayes, letter to M. Drygas (Dec. 12, 1995);

B. P. Cole, letter to M. Drygas (Aug. 9, 1995);

C. M. Drygas, letter to P. Cole (Aug. 29, 1995);

D. P. Cole, letter to M. Drygas (Sept. 1, 1995);

E. M. Pulice, letter to M. Drygas (June 20, 1995);

F. P. Cole, letter to M. Drygas (July 14, 1995);

G. M. Pulice, letter to M. Drygas (July 19, 1995);

H. P. Cole, letter to M. Drygas (Aug. 24, 1995);

I. Withdrawn;

J. P. Cole, letter to M. Drygas (Aug. 11, 1995);

K. P. Cole, letter to M. Drygas (Aug. 24, 1995);

L. Withdrawn (duplicate of C-15);

M. M. Drygas, letter to J. Hayes (Dec. 8, 1995);

N. M. Pulice, letter to Drygas (Oct. 13, 1995);

O. J. Hayes, letter to M. Drygas (Nov. 9, 1995);

P. Withdrawn (duplicate of R-N);

Q. J. Hayes, letter to M. Drygas (Nov. 9, 1995);

R. J. Hayes, letter to M. Drygas (Nov. 24, 1995);

S. J. Hayes, letter to M. Drygas (Dec. 8, 1995);

T. M. Drygas, letter to P. Cole (Aug. 30, 1995);

U. Withdrawn (duplicate of C-9);

V. Arbitrator’s Opinion & Award (Landau, Oct. 31, 1994);

W. FGC Sec. 16.15.101;

X. Fairbanks Police Department Chapter, Alaska Public Employees Ass’n, v. City of Fairbanks, 920 P.2d 273 (Alaska 1996) (authority);

Y. Grievance 95-26 documents (undated);

Z. Withdrawn (duplicate of C-15);

AA. J. Rice, letter to B. Phillips (Dec. 26, 1989);

AB. M. Drygas, letter to J. Hayes (Nov. 15, 1995);

AC. M. Drygas, letter to J. Hayes (Nov. 15, 1995);

AD. Opinion & Award, Grievance 94-21 (p. 25) (Aug. 25, 1995);

AE. J. Eberhart, letter to B. Wood (Dec. 18, 1995);

AF. Withdrawn (duplicate of C-15);

AG. Fairbanks Fire Fighters Ass’n, Local 1324, International Ass’n of Fire Fighters v. City, Decision & Order No. 142 (July 15, 1992);

AH. Fairbanks Fire Fighters Ass’n, Local 1324, IAFF, Order on Motion for Summary Judgment, 96-431-CBA (Dec. 22, 1995); and

AI. M. Pulice, grievance tracking record (Jan. 8, 1996).

B. Testimony.

Fairbanks Fire Fighters Association, Local 1324, IAFF, presented the testimony of Jimmy D. Rice, former business agent, Fire Fighters; Mark Drygas, business agent, Fire Fighters; Andrew Garcia, fire fighter; Patrick Cole, deputy city attorney and former city manager; and James C. Hayes, mayor.

The City of Fairbanks presented the testimony of Patrick Cole, deputy city attorney and former city manager.

C. Agency case file. 8 AAC 97.410.

Findings of Fact

The panel, by a preponderance of the evidence, finds the facts as follows:

1. The Fairbanks Fire Fighters Association Local 1324, IAFF, is recognized as the exclusive collective bargaining representative of certain fire fighting employees of the City of Fairbanks, including the positions of recruit, driver, captain, battalion chief, and deputy fire marshal I, II, and III, battalion chief training, deputy fire marshal recruit, EMT I, hazmat first responder, SCBA specialist, data specialist, and paramedic. Exh. C-1, at 9, 54, & 59-60.

2. The Fire Fighters and the City entered into a collective bargaining agreement, effective January 1, 1993 -- December 31, 1995. Exh. C-1, at 1 & 76.

3. Article 4 of the parties' agreement includes a grievance procedure, which provides for arbitration as its final step:

4.1 GRIEVANCE POLICY

It is the mutual desire of the City and the Association to provide for the prompt adjustment of grievances in a fair and reasonable manner, with a minimum amount of interruption of the work schedules. Every reasonable effort shall be made by both the City and the Association to effect the resolution of grievances at the earliest step possible. In the furtherance of this objective, the City and the Association have adopted the following procedure as the exclusive method of resolving grievances arising under this Agreement, not including unfair labor practices covered under PERA.

4.2A GRIEVANCE DEFINITION

A grievance is defined as any good faith and material dispute between any member(s) of the Association and the City involving the interpretation, application or alleged violation of any provision of this Agreement, the Rules and Regulations, or the Standing Operating Procedures of the Fairbanks Fire Department, including involuntary termination and disciplinary action. However, any dispute involving the commencement date or termination date of this contract shall not be considered a grievance, and shall not be submitted to the grievance/arbitration procedure set forth herein. Any questions concerning commencement or termination of this Agreement shall be specifically reserved for judicial review. The City and the Association may mutually agree to use the grievance procedure for other matters. . . . .

Exh. C-1, at 6.

4. A routine strategy used by the City to respond to grievances filed by the Fire Fighters was resisting their arbitrability.

5. When corresponding with the Fire Fighters on pending grievances, the City routinely included the statement "the City reserves the right of the City Council to decline to fund the monetary terms of any arbitrator’s award." Exh. C-3 (grievances 95-03, 95-05, & 95-06); Exh. C-15 (grievances 95-18, 95-25, & 95-26); Exh. R-A (grievance 95-29); Exh. R-B (grievance 95-13); Exh. R-F (grievance 95-14); R-H (grievance 95-16); Exh. R-K (grievance 95-18); Exh. R-O (grievance 95-21); Exh. R-Q (grievance 95-22); Exh. R-R (grievance 95-26); Exh. R-S (grievances 95-18, 95-25, & 95-26); Exh. R-AE (grievance 94-21).

6. The City complained about the Fire Fighters’ duplication of grievances and in two instances sought to consolidate related grievances into a single proceeding. Exh. C-3 (to consolidate grievances in 95-03, 95-05, and 95-06); Exh. R-S (to consolidate grievances 95-18, 95-25 and 95-26).

7. The collective bargaining agreement covered the hire of temporary fire bureau employees in a letter of agreement made on January 1, 1993, Exh. C-19, that was amended on June 6, 1994. Exh. C-22.

8. The agreement allowed the hire and use of temporary employees at lower wages and without benefits who were not members of the Fire Fighters’ bargaining unit. The agreement limited the number of hours the City could use these employees and the positions they could work. Exh. C-22.2. Included in the agreement was the statement that "Any willful violation of the terms and conditions of this addendum by the City will result in the immediate termination of the temporary/part-time employee program." Exh. C-22.3.

9. The parties have agreed to a procedure for the hire of fire fighter recruits. Exh. 27.1. It establishes minimum qualifications, requires a physical examination, and includes a method for ranking candidates. Exhs. 27.2, 27.3, & 27.10.

10. The parties agreed to a special hiring procedure giving priority to former employees:

The Director of Public Safety or his designee may, after all other contract provisions are complied with, hire former Fire Department employees who separated from City employment in good standing, from any Group list established in the hiring process.

The rehired employee will be placed in the highest classification level formerly held or Fire Fighter Step 3, whichever is lower.

Exh. C-24.

11. The City hired Daniel Grimes, a former temporary fire bureau employee. He was not hired under the usual hiring procedures but as a priority rehire.

12. The Fire Fighters filed grievance 95-18, complaining that Grimes was hired in violation of the agreement: he was placed in a classification higher than the classification he had formerly held. His position on the recruit fire eligibility list was in Group B and the agreement required a hire from Group A. Exh. C-7.2. The Fire Fighters asked for the dismissal of Grimes, for compensation for wages that should have been paid a properly hired recruit, and for termination of the temporary/part time employee program. Exh. C-7.2.

13. The City’s representative City Manager Pat Cole and the Fire Fighters’ representative Business Agent Mark Drygas entered into a settlement agreement of the grievance in 95-18 containing the following terms:

The City of Fairbanks shall:

1. On or before October 29, 1995, hire four additional full-time suppression personnel, raising total to 37 (includes Battalion Chief, Training).

2. Not hire any additional part-time temporary personnel for the duration of the current Working Agreement, including extension until new Working Agreement is in effect.

The Fairbanks Fire Fighters shall:

1. Upon the City’s compliance with the above item number one, Withdraw Grievance 95-18.

2. Not oppose the rehiring of temporary part-time employees as full-time employees for the duration of the current Working Agreement, including extension until new Working Agreement is in effect.

Exh. C-7.11.

14. City ordinance requires the submission of settlement agreements for approval to the council if the agreement would diminish management rights or increase the costs under a collective bargaining agreement. FGC 16.15.101, Exh. R-W.

15. Pat Cole signed the agreement eleven days before his appointment as city manager was ending. The voters had opted to go to a mayoral form of government. Cole had reservations about his authority to make the agreement. The costs of the agreement were not known, and he thought City Council approval might be required.

16. Cole took the issue of the agreement to the City Council and addressed it in executive session. Cole did not believe the council voted on the question of approval and recalls that the members wanted more information.

17. The City Council did not adopt a resolution approving the settlement agreement.

18. The City did not provide any written notification to the Fire Fighters that the agreement was not approved. Exh. C-7.12.

19. In the meantime the City hired a second temporary employee as a permanent employee, Andrew Garcia, and the Fire Fighters responded with a second grievance. Exh. C-12.

20. The City did not hire four additional full time fire suppression personnel as set out in the agreement settling grievance 95-18. Exh. R-AB.

Discussion

1. This Agency has jurisdiction to consider these consolidated charges.

The City disputes the Agency’s jurisdiction to consider these charges. In these two complaints the Fire Fighters claim that the City’s handling of a number of grievances constitutes an unfair labor practice. The City responds by stating that Alaska law makes arbitrability a question for the courts "unless the parties clearly and unmistakably provide otherwise." Respondent’s Prehearing Statement, p.1 (Sept. 23, 1996).

The support for the City’s position is State v. Public Safety Employees Ass’n, 798 P.2d 1281 (Alaska 1990), which states, in part, "the federal rule is that arbitrability is a question for the courts ‘[u]nless the parties clearly and unmistakably provide otherwise.’" Id., at 1285, quoting AT&T Technologies, Inc. v. Communications Workers, 475 U.S. 643, 649 (1986). The court in this case, however, was addressing interest arbitration under AS 23.40.200, which provides for arbitration of the terms of a collective bargaining agreement after impasse in negotiations for employees who may not strike. The dispute in the Fire Fighters’ complaints, on the other hand, involves grievance arbitration. The Public Employment Relations Act addresses grievance arbitration in AS 23.40.210 and plainly provides this Agency with jurisdiction to enforce arbitration clauses:

The agreement shall include a grievance procedure which shall have binding arbitration as its final step. Either party to the agreement has a right of action to enforce the agreement by petition to the labor relations agency.

AS 23.40.210(a) (in part). The Agency does consider petitions to enforce collective bargaining agreements. 8 AAC 97.500--520.

However, the Fire Fighters have filed these disputes as unfair labor practice complaints. The legislature anticipated that employers’ conduct in grievance proceedings could be the subject of an unfair labor practice charge. AS 23.40.110(a)(5) provides that a public employer may not "refuse to bargain collectively in good faith with an organization which is the exclusive representative of employees in an appropriate unit, including but not limited to the discussing of grievances with the exclusive representative." Emphasis added.

Because the legislature in AS 23.40.110(a)(5) authorized the Agency to consider the claims the Fire Fighters raise in these consolidated cases, the Agency has jurisdiction.

2. The totality of the City’s conduct in the grievances filed by the Fire Fighters violated the duty to bargain collectively in good faith in AS 23.40.110(a)(5).

The Fire Fighters complain in case no. 96-476-ULP that the City’s responses to its grievances violated the City’s duty to bargain in good faith in AS 23.40.110(a)(5). As we have stated, the language of AS 23.40.110(a)(5) shows that conduct related to grievances is an appropriate subject for an unfair labor practice charge. The Fire Fighters complain that the City’s conduct responding to its grievances shows bad faith. The specific instances of the City’s bad faith alleged by the Fire Fighters are that the City refused to arbitrate certain grievances; the City stated in correspondence, "the City reserves the right of the City Council to decline to fund the monetary terms of any arbitrator’s award;" and the City attempted to consolidate grievances.

While each specific incident may not by itself support a finding that the City committed an unfair labor practice, we find that the totality of the City’s conduct demonstrates bad faith. One commentator states,

[E]ven though some specific actions, viewed alone, might not support a charge of bad-faith bargaining, a party’s overall course of conduct in negotiations may reveal a violation of the Act.

I Patrick Hardin, The Developing Labor Law 609 (3d. ed. 1992). While we have not seen the National Labor Relations Board or the federal courts apply the totality of the conduct standard to conduct under a grievance arbitration clause, we believe the application is appropriate for two reasons. First, AS 23.40.110(a)(5) expressly prohibits bad faith in the discussion of grievances. Second, the totality of the conduct standard provides a workable measure to test for bad faith regardless of the context of the conduct.

A. The City’s refusal to arbitrate certain grievances.

The Fire Fighters complain that the City’s refusal to arbitrate certain grievances is a violation of AS 23.40.110(a)(5). In support of its complaint, the Fire Fighters point to a number of grievances in which the City contests arbitrability. We note that a party should be entitled to raise any defense to a charge that the facts justify. The absence of arbitrability can be a valid defense. See, e.g., Exh. R-V. However, the City’s conduct in these cases goes beyond vigorous advocacy. The City appears to be challenging arbitrability as a routine strategy. Litigating arbitrability in every case drives up the costs and delays the outcome. See, e.g., C-18 (Fire Fighters’ costs for arbitrating a grievance were $53,394.53). The result is to undermine the agreement and frustrate the purpose of a grievance arbitration term. Exh. C-8.1.

The Fire Fighters provided a number of examples from grievances to support their claims. The record includes a staffing level grievance, grievance 95-13. Exh. C-4.1. Staffing levels in fire fighter bargaining units have typically been found to be a safety issue, which is a mandatory subject of bargaining. See Fairbanks Fire Fighters Ass’n, Local 1324, IAFF v. City of Fairbanks, 934 P.2d 759, 761 (Alaska 1997) (supreme court notes that court below found "shift reduction" to be a mandatory subject of bargaining). Unilateral changes in staffing levels, when staffing is addressed in the agreement or affects worker safety, can be an appropriate subject for a grievance. Frank Elkouri & Edna Asper Elkouri, How Arbitration Works 516 (4th ed. 1985) and 136 (1985-1989 Supp).

Grievance 95-13 involved a particular instance of staffing in nonconformity with the agreement. The grievance was filed six days after the incident. The City responded at the first level by denying the grievance as untimely. Exh. C-4.2. At the third level, the City denied the grievance as untimely, as raising the same issues as other grievances, and as not arbitrable. The City offered to meet and confer, which was rejected by the Fire Fighters. The City also reserved the "right" of the City Council not to fund an arbitration award. Exh. C-4.4. The City refused to advance the grievance to arbitration. Exh. C-4.6.

The second grievance in the record, grievance 95-14, alleged that the City failed to negotiate battalion chief training as required, citing Article 16, Wages, which provides for the negotiation of flextime for another position to perform relief for the battalion chief. Exh. C-5.1. The City denied the grievance for a number of reasons, including the reason that the grievance was not arbitrable and that it raised issues raised in another grievance, 95-03. Exhs. C-5.3; C-5.7; R-E; & R-F.

An individual fire fighter Gary McMillan brought grievance 95-16, claiming that his position, paramedic, should have received overtime hours, rather than a driver, under the agreement’s staffing provisions. Exh. C-1, at 22 (section 6.2B). The City raised a number of defenses including arbitrability and the fact that the grievance raised issues already grieved. Exhs. C-6.3; C-6.5; R-G; & R-H.

Another grievance involved the priority hire of a former temporary employee. It alleges that the City misused the priority rehire provisions of the agreement. Exh. C-7.1. The Fire Fighters had agreed to the temporary hire of fire suppression employees who were paid less, did not receive benefits, and were not members of the bargaining unit. Exhs. C-19 & C-22. The City and Fire Fighters had also agreed to a provision allowing the priority rehire of former members of the fire department. Exh. C-24. The City relied on the priority rehire provision to hire a temporary employee as a permanent employee, in noncompliance with the hiring requirements, Exh. C-27, although the priority rehire provision provided that the highest classification that a rehire could hold was the classification of his former position or a Fire Fighter Step 3 position, whichever was lower. Exh. C-24.

The parties made an initial attempt to resolve this grievance, Exhs. C-7.4; 7.5;& R-J, but then resorted to technical defenses and strict interpretation of the agreement. Business agent Drygas expressed his frustration at the City’s position in a letter to Cole. Exh. C-7.8. The result was a settlement between Drygas and Cole in September of 1995 that the City would hire four additional fire suppression personnel and agree not to hire any additional temporary personnel for the duration of the agreement. Exh. C-7.11. In the meantime Cole sought approval of the agreement from the City Council. The City was moving from a city manager to a mayoral form of government and Cole would not be city manager much longer. He was concerned that the agreement would increase costs, which would necessitate council approval under ordinance FGC 16.15.101. Exh. R-W. He presented the terms of the agreement to the City Council in executive session. The council did not approve the agreement. In November of 1995, business agent Drygas advised the new City Mayor, Jim Hayes, that he had learned that the City had not complied with the settlement. Exh. C-7.12. Drygas understood the City’s reasons for not performing as a belief that compliance was optional and the absence of City Council approval. Exh. C-7.12.

Another staffing level grievance appears in grievance 95-21. Exh. C-10.1. Fire Fighters filed a grievance about acting down (working out of classification) and overtime compensation in grievance 95-22. Exhs. C-11.1. & C-11.6. The City responded to the two grievances by seeking to include the subjects of the grievances in the negotiation of a successor agreement. Exhs. C-10.1; C-11.4; & R-N. The Fire Fighters instead advanced the grievances to the next step. Exh. C-10.5. Mayor Hayes responded by denying arbitrability and reserving the right not to fund any award. Exhs. C-10.6 & C-11.6.

The City hired another former temporary employee, Andrew Garcia, as a permanent employee (the subject of grievance 95-18), and the Fire Fighters responded by filing grievance 95-25 on November 20, 1995. Exh. C-12.1. The City denied the grievance and reserved the issue of arbitrability and the City Council’s right to decline to fund the monetary terms of an arbitrator’s award. Exhs. C-12.5 & R-Y.

The Fire Fighters next filed grievance 95-26 for the breach of the agreement settling grievance 95-18 (the rehire of former temporary employee Grimes). Exh. C-13.1. The City responded as it did to grievance 95-25. It disputed the arbitrability of the grievance and declined to fund the monetary terms of any arbitration award. Exhs. C-13.3 & R-R.

On December 7, 1995, the Fire Fighters withdrew the grievance in 95-18 and stated it was no longer challenging the hire of Daniel Grimes. Exh. C-14.1. On December 8, 1995, the City responded by stating that the grievances involved the same subject matter and were an attempt to split up or divide a question into separate grievances, despite the fact that each grievance was filed subsequent to a specific action by the City. Exhs. C-15 & R-S. On December 22, 1995, the Fire Fighters filed the unfair labor practice charge in case no. 96-487-ULP regarding the failure of the settlement in 95-18. Exh. C-13.4.

The evidence shows a persistent refusal to take the grievance process seriously and a frustration of that process.

B. Effect of the statement "the City reserves the right of the City Council to decline to fund the monetary terms of any arbitrator’s award."

The statement appears in much of the City’s correspondence with the Fire Fighters related to grievances. The City justifies the use of this statement by stating that it provides notice of the City Council’s right to refuse to fund an arbitration award under Public Safety Employees Ass’n v. State, 796 P.2d 1281. The City further maintains that the statement, by reserving the right, protects the City from being found to have waived it.

The City’s justification stands on shaky ground. Again the City resorts to the law addressing interest arbitration and applies it to grievance arbitration. The court in Public Safety Employees Ass’n v. State, held that the legislature was not bound by an interest arbitration award. An interest arbitration award substitutes for the agreement the parties could not reach in collective bargaining. Collective bargaining agreements are subject to legislative funding and approval under AS 23.40.212.¹ The court extended the requirement for legislative approval to interest arbitration awards that substitute for the agreements. It does not follow from this reasoning that grievance proceedings that culminate in an arbitration award under AS 23.40.210 would also be subject to legislative funding and approval, and one superior court has rejected extending the requirement of approval to grievance arbitration awards. Alaska Public Employees Ass’n, Fairbanks Police Department Employees Ass’n v. City of Fairbanks, case no. 4FA-95-2257 CI (Super. Ct., Feb. 21, 1997) (judgment enforcing arbitration award), Exh. C-2. Thus, the City’s statement misstates the law and is misleading.

We are also concerned about the effect of this statement. The City has the duty to exercise good faith in the discussion of grievances. See AS 23.40.110(a)(5). Good faith has been described as "an open mind and a sincere desire to reach an agreement" and "a sincere effort . . . to reach a common ground." I Patrick Hardin, The Developing Labor Law 608 (3d ed. 1992), quoting NLRB v. Montgomery Ward & Co., 133 F.2d 676, 12 L.R.R.M.(BNA) 508 (9th Cir. 1943), and General Elec. Co., 150 NLRB 192, 194, 57 L.R.R.M.(BNA) 1491 (1964), enforced 418 F.2d 736, 72 L.R.R.M.(BNA) 2530 (2d Cir. 1969), cert. denied, 397 U.S. 965, 73 L.R.R.M. (BNA) 2600 (1970). A reminder that the grievance procedure, whatever the outcome in arbitration, could result in nothing does not demonstrate an open mind and a sincere desire to reach agreement or, in this case, resolve the grievance dispute. The likely effect would be to chill the exercise of those rights. This effect is not cured by adding the statement that "As always, the City remains willing to discuss this matter." See Exh. C-3.

We conclude that the repeated and routine use of a statement purporting to reserve the right of the "City Council to decline to fund the monetary terms of any arbitrator’s award" demonstrates bad faith in violation of AS 23.40.110(a)(5).

C. The City’s attempts to consolidate grievances.

The City’s defenses to the Fire Fighters’ charges include the argument that the Fire Fighters file a disproportionately high number of employee grievances, and the number is overwhelming the City, which is coping as well as it can. The City complains that even grievances that settle or conclude reappear. The Fire Fighters will pursue a grievance for an individual fire fighter after dropping or settling a grievance it filed on the same subject matter. See, e.g., grievances 94-20 and 94-21, Exh. C-16. This practice, however, is permitted by the negotiated agreement. Exh. C-1, at 10. The Fire Fighters, on the other hand, complain that by attempting to consolidate grievances, the City is not adhering to the parties’ agreement. The City in two instances sought to consolidate related grievances into a single proceeding. Exh. C-3 (grievances 95-03, 94-05, and 95-06); Exh. R-S (grievances 95-18, 95-25 and 95-26); & C-15.

The volume of grievances, the pursuit of inconsistent grievances, and the refusal to consolidate similar grievances are symptomatic of the problems in the parties’ relationship. Exh. C-9.1 (recitation of City’s concern about the practices of the Fire Fighters). We note that the agreement supports the position the Fire Fighters have taken on this procedural issue. The agreement provides for a separately convened arbitration for each grievance or dispute. Exh. C-1, at 9. It also provides that, if the Fire Fighters declines to represent a grievant, the grievant may pursue the matter independently, although the Fire Fighters may intervene at any time to protect its interests. Id., at 10.

But we also note that good faith requires discussion and an effort to work out differences. The parties’ agreement requires "every reasonable effort" to resolve "grievances at the earliest step possible." Exh. C-1, at 6. It includes efforts to resolve grievances informally through conciliation. Id., at 8. Efforts to resolve grievances expeditiously and economically should be encouraged. Consolidation of grievances raising similar facts and issues and requiring the same documentary evidence and witnesses can be much more economical and expeditious than trying each grievance in a separate arbitration. Seeking agreement to handle the cases more economically could show a parties’ good faith. However, demanding consolidation while threatening default and reserving the right not to fund any arbitration award does not. See Exh. C-3.

We conclude that the totality of the City’s conduct in grievance proceedings with the Fire Fighters violated AS 23.40.110(a)(5).

3. The City’s conduct in grievance disputes with the Fire Fighters interfered with rights protected under PERA in violation of AS 23.40.110(a)(1).

The Fire Fighters complain that the City’s conduct in grievances, as set out in section 2 above, also violates AS 23.40.110(a)(1). AS 23.40.110(a)(1) prohibits a public employer from interfering with, restraining, or coercing "an employee in the exercise of the employee’s rights guaranteed in AS 23.40.080." Included in the rights guaranteed in AS 23.40.080 is the right to "engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection."

By violating AS 23.40.110(a)(5), the City has interfered with rights protected under AS 23.40.110(a)(1) and also violated that section. International Bhd. of Elec. Workers, Local Union 1547 v. Kodiak Island Borough, Decision & Order No. 190, at 36 (July 21, 1995); I Patrick Hardin, supra 75.

4. The remedy for the violations of AS 23.40.110(a)(1) and (5) is an order to cease and desist the unlawful conduct.

We have found that the City violated AS 23.40.110(a)(1) and (5) as set out in the Fire Fighters’ charges in case no. 96-476-ULP. The next issue is the appropriate remedy. In its charge the Fire Fighters ask for relief as follows:

The Association asks the Alaska Labor Relations Board to order the City to immediately cease from any interference in the grievance procedure. The Association also asks the Board or order the City to arbitrate all grievances in which they have denied arbitrability. The Association further asks the Board to order the City to cease their [insistence] that they can refuse to fund a grievance arbitration award.

Complaint, at 4 (case no. 96-476-ULP). The Agency’s remedial authority appears in AS 23.40.140, which provides in part:

If the labor relations agency finds that a person named in the written complaint or accusation has engaged in a prohibited practice, the labor relations agency shall issue and serve on the person an order or decision requiring the person to cease and desist from the prohibited practice and to take affirmative action which will carry out the provisions of AS 23.40.070 -- 23.40.260.

An order to cease and desist the illegal conduct is usually the appropriate remedy. In this case an order for the City to cease and desist in obstructing the grievance procedures in the parties’ collective bargaining agreement would be appropriate. Included would be a stop to the routine strategy of denying the arbitrability of every grievance filed and a stop to the use in grievance correspondence of the statement reserving the City Council’s right not to fund any arbitration award.

However, an order to arbitrate all pending grievances is premature. We have disapproved what we perceive to be a routine strategy of disputing the arbitrability of grievances without regard to the merits of the defense. We have not, however, examined the arbitrability of all of the grievances addressed in this complaint and therefore do not rule on the arbitrability of each grievance. We can, however, order the City to exercise good faith in its conduct under the grievance arbitration procedures in the agreement. We would expect a party acting in good faith to restrict its use of the defense of arbitrability to those grievances where the facts justify it.

5. FGC 16.15.101 sets out the authority of the city manager in labor relations.

City ordinance sets out the authority of the city manager in labor relations, reserving approval for amendments to the agreement that affect the City’s power or increase the costs of the agreement. FGC 16.15.101(a) provides:

[The city manager shall h]ave the authority to negotiate with representatives of employee organizations representing city employees and employees of the municipal utilities system for the purpose of arriving at collective bargaining agreements as to wages, hours and terms or conditions of employment. Any such agreements as may be negotiated between the city, including the municipal utilities system, shall not be effective unless and until approved by ordinance of the city council. In negotiating contracts, the city manager will use provisions of the personnel program, unless directed otherwise, as guidelines to be achieved. The basic goal will be to treat city employees in a similar manner as much as appropriate, and to pay similar wages for similar work.

Any amendments to a labor contract negotiated during the life of the contract that would have the net effect of increasing the cost of the contract to the City of Fairbanks or dilute or decrease management rights shall not be effective unless and until approved by resolution of the city council. The city manager shall convey the proposed amendment to the council with explanation and cost analysis for the council’s consideration.

Exh. R-W. The effect of the ordinance on grievances is straightforward. The city manager may negotiate a tentative agreement in collective bargaining but final approval rests with the City Council. In addition, the city manager may amend the agreement in the settlement of a grievance but any amendments that would have the effect of increasing the City’s costs under the agreement or reducing management rights must be approved by resolution.²

6. The City’s failure to perform as City Manager Cole agreed in the settlement of grievance no. 95-18 or to communicate that the City Council failed to approve the agreement was an unfair labor practice.

The Fire Fighters’ charge in case no. 96-487-ULP follows the failure of a settlement of its grievance no. 95-18 against the City. The Fire Fighters filed this grievance in response to the City’s hire of a former temporary employee to a permanent position. Exh. C-7. The City had followed the priority rehire provision rather than the hiring provisions in the collective bargaining agreement. The priority rehire provision allowed the City to hire former employees who separated in good standing. The employee was to be placed in the highest classification previously held or at the level Fire Fighter Step 3, whichever was lower. Exh. C-24. The Fire Fighters maintain that the priority rehire provision allowed the rehire of permanent employees only.

The history of the temporary employees was that the Fire Fighters and the City negotiated a letter of understanding to the agreement creating a new category of fire bureau employee, the temporary or part-time fire fighter. The City was restricted to using such employees 60 hours per pay period. Exhs. C-19; C-22.1. These temporary or part-time employees were not represented by the Fire Fighters. They received lower wages and no benefits. Exh. C-22.3.

The parties were able to resolve the grievance. The City agreed to stop the temporary hire program and hire four permanent fire suppression employees. The Fire Fighters agreed to withdraw the grievance. These negotiations occurred when the City was undergoing a transition from a city manager to a mayoral form of government. Cole, who represented the City in the settlement discussions, was facing the imminent loss of his position. Drygas believed Cole had authority to bind the City because he had settled grievances in the past. Cole, on the other hand, was concerned about his authority and took the issue of the agreement to the City Council for approval. The council members wanted more information and did not approve the agreement. Apparently Cole or another City representative did not pursue the issue further.

We note first that, if the settlement would increase the City’s costs or diminish management rights, ordinance FGC 16.15.101 would have required a resolution approving the agreement. Because the agreement would have stopped the use of a program allowing lower pay and benefits and required the hire of more expensive, permanent employees, it could have increased the City’s costs. Because the City Council never approved the agreement, the agreement would not have been effective. If the agreement were not in effect, the settlement would fail and the grievance would be alive. On the other hand, if the agreement did not require City Council approval, Cole as city manager would have the authority under FGC 16.15.101 to enter into the agreement. By failing to perform as agreed, the City would have breached the agreement.

Either scenario is a breach of the duty to bargain in good faith under AS 23.40.110(a)(5). The City’s conduct is not consistent with good faith bargaining. The parties initially attempted to resolve the dispute. Despite the discussions, the City continued to insist that the grievance was not arbitrable. When the City did not approve the agreement or the City’s representatives discovered that the City would not perform the terms under the agreement, it did not advise the Fire Fighters, offer to return to discussions, or proceed with the grievance. In contrast, the City did use that part of the settlement agreement advantageous to it. It hired a second temporary employee to a permanent position without regard to the hiring procedures in the agreement.

This conduct is not conducive to a working dispute resolution process. It undermines the process by showing the process is futile. We conclude the City’s conduct was in violation of the obligation of good faith in AS 23.40.110(a)(5).

7. The appropriate remedy in case no. 96-487-ULP is an order to arbitrate.

The remaining question is the appropriate remedy. The Fire Fighters seek an order enforcing the settlement agreement, which would require the City to hire three additional full- time fire suppression personnel. Complaint, at 4 (case no. 96-487-ULP). This Agency in appropriate circumstances should be able to enforce an agreement settling a grievance. See AS 23.40.210, which authorizes the Agency to hear actions to enforce the collective bargaining agreement. But enforcement of the agreement is not appropriate in this case.

This agreement does not contain mutual promises. It conditions performance by the Fire Fighters, i.e., the withdrawal of the grievance, on the City’s hire of four fire suppression employees. Because the City failed to perform the conditions set out in the agreement, the precondition to the Fire Fighter’s promise to withdraw the grievance did not occur, and the grievance is not withdrawn. Alaska Community Colleges’ Federation of Teachers, Local 2404, AFT, AFL-CIO (ACCFT) v. University of Alaska, Decision & Order No. 210 (Nov. 7, 1996), appeal pending case no. 3AN-96-8708 CI (Super. Ct., filed Dec. 11, 1996). The Fire Fighters’ grievance is alive and should proceed to the next step in the grievance procedure, ultimately proceeding to arbitration.

Documents in the record show that the City disputes the arbitrability of grievance 95-18. The subject matter of the grievance is the interpretation of the agreement -- the terms concerning the temporary employee program and rehire rights. Exh. C-24. The definition of grievance in the agreement covers "any good faith and material dispute between any member(s) of the Association and the City involving the interpretation, application, or alleged violation of any provision of this Agreement . . . ." Exh. C-1, at 6. The subject of the grievance is arbitrable.

Conclusions of Law

1. The City of Fairbanks is a public employer under AS 23.40.250(7) and the Fairbanks Fire Fighters Association is a labor organization under AS 23.40.250(5).

2. This Agency has jurisdiction to consider unfair labor practice complaints under AS 23.40.110. Complaints concerning the discussion of grievances are expressly authorized in AS 23.40.110(a)(5) and thus the Agency has jurisdiction to consider the Fire Fighters' complaints in these two cases.

3. By its conduct, specifically the strategy of challenging arbitrability and the statements that the City Council could refuse to fund any arbitration award, the City violated its duty to bargain collectively in good faith under AS 23.40.110(a)(5).

4. By engaging in conduct violating AS 23.40.110(a)(5), the City also interfered with protected rights in violation of AS 23.40.110(a)(1).

5. Consolidation of grievances cannot be compelled under the parties’ collective bargaining agreement.

6. The appropriate remedy is for the City to cease and desist its conduct in violation of AS 23.40.110(a)(1) and (5).

7. FGC 16.15.101 reserves the authority to the City Council to approve agreements settling grievances that would diminish management rights or increase the City’s costs.

8. The agreement settling grievance 95-18 could have had the effect of diluting management’s rights or increasing costs and City Council approval was probably needed. If the agreement was authorized, the City breached the agreement when it did not perform under it. In either case the effect is reinstatement of the grievance and arbitration.

9. The City’s failure to perform as City Manager Cole agreed in settling grievance no. 95-18 or to communicate that the City Council failed to approve the agreement was an unfair labor practice under AS 23.40.110(a)(5).

10. AS 23.40.210 and AS 23.40.110(a)(5) authorize this Agency to determine the arbitrability of a dispute.

11. The subject matter of grievance 95-18 is arbitrable because it raises issues of the interpretation of the collective bargaining agreement and the City’s hiring policy.

12. The appropriate remedy for the unfair labor practice resulting from the City’s inaction after tentatively agreeing to settle grievance 95-18 is to reinstate the grievance and compel the parties to arbitration if they cannot reach a mutually acceptable settlement.

13. Enforcement of the agreement settling grievance 95-18 is not appropriate. The agreement was never approved and therefore never effective. In the alternative, if approval was unnecessary, the agreement itself provides an appropriate remedy. The Fire Fighters are not obligated to withdraw the grievance and may pursue the grievance through the steps set out in article 4 of the parties’ collective bargaining agreement.

ORDER

1. The City of Fairbanks’ conduct in certain grievance proceedings violated AS 23.40.110(a)(1) and (5);

2. The City of Fairbanks is ordered to cease and desist from infringing in any manner upon the rights guaranteed under AS 23.40.070 -- 23.40.260;

3. The City of Fairbanks is ordered to cease and desist from obstructing the grievance procedures in the collective bargaining agreement, and more specifically, to cease and desist from the routine, strategic use of the arbitrability defense and from the use of the statement reserving the right not to fund arbitration awards in correspondence pertaining to grievances;

4. The City of Fairbanks’ conduct regarding the settlement of grievance 95-18 violated AS 23.40.110(a)(5);

5. Upon a demand by the Fire Fighters, the City of Fairbanks is ordered to proceed with grievance 95-18 through the steps in article 4 of the agreement, including arbitration;

6. This agency reserves jurisdiction over any disputes that may arise between the parties regarding the progress of grievance 95-18 through the steps in article 4 of the agreement; and

7. The City of Fairbanks is ordered to post a notice of this decision and order at all work sites where members of the bargaining unit affected by the decision and order are employed or, alternatively, serve each employee affected personally. 8 AAC 97.460.

ALASKA LABOR RELATIONS AGENCY

Blair E. Schad, Vice Chair

Karen J. Mahurin, Board Member

James W. Elliott, Board Member

APPEAL PROCEDURES

This order is the final decision of this Agency. Judicial review may be obtained by filing an appeal under Appellate Rule 602(a)(2). Any appeal must be taken within 30 days from the date of filing or distribution of this decision.

CERTIFICATION

I hereby certify that the foregoing is a full, true and correct copy of the order in the matter of FAIRBANKS FIREFIGHTERS ASS’N, LOCAL 1324, IAFF v. CITY OF FAIRBANKS, dated and filed in the office of the Alaska Labor Relations Agency in Anchorage, Alaska, this 25th day of June, 1997.

Cindy Teter

Administrative Clerk III

This is to certify that on the 25th day of June, 1997, a true and correct copy of the foregoing was mailed, postage prepaid to

Brett M. Wood, Fairbanks FireFighters Ass’n Mark Drygas, Fairbanks Fire Fighters Ass’n

Paul J. Ewers, City of Fairbanks

Signature

¹The Alaska Supreme Court held that AS 23.40.212 applied to political subdivisions in Fairbanks Police Department Chapter, Alaska Public Employees Ass’n v. City of Fairbanks, 920 P.2d 273 (Alaska 1996).

²This ordinance obviously predates the City’s change to a mayoral form of government. The effect of the change, if any, was not an issue.

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