By Mitchel Wilson
In Municipality of Anchorage, Arbitrator Robert Landau concluded that because the City of Anchorage changed the Police Support work schedule, it had improperly changed a working condition in violation of the CBA.
In 2001, the Anchorage Police Department’s (APD) Property and Evidence employees proposed to change their 40 hour work week, to a “9/80.” A 9/80 shift is a two-week work schedule where employees attain 80 hours over nine days; the first week consists of four, nine-hour shifts and one eight-hour (44 hours) and the second week consists of four, nine-hour shifts with Friday off (36 hours). Employees favored the schedule because they received a three-day weekend every other week.
The parties agreed to the 9/80 shift on a six-month trial basis that either party could terminate in the trial period, but the parties never returned to negotiate. The Property and Evidence employees continued to work a 9/80 schedule for 10 years. Anchorage developed an application for the alternative work schedule and it stated that the work schedule was subject to a supervisors’ approval; however, none of the applications were signed or approved by Union representatives.
Other non-uniform employees likewise negotiated for alternative work schedules; they too were subject to a trial period and became permanent but never were put into the CBA. Anchorages new negotiator learned of the alternative schedule and that it was not in the CBA. The Mayor then acted without consulting or bargaining with the Union to suspend the alternative shifts in September 2012. The Union filed a grievance alleging that APD had violated the CBA by unilaterally changing work schedules.
Pursuant to the CBA, any unilateral change to a mandatory subject of bargaining is subject to arbitration. Furthermore, such a change is “normally regarded as a per se violation of the duty to bargain in good faith.” Because this was a unilateral change, the question is whether it is an issue subject to mandatory negotiation provided for in local and state law.
A unilateral change not only violates the plain requirement that the parties bargain over “wages, hours, and other terms and conditions,” but also injures the process of collective bargaining itself. “Such unilateral action minimizes the influence of organized bargaining. It interferes with the right of self-organization by emphasizing to the employees that there is no necessity for a collective bargaining agent.”
Interestingly, Anchorage employee collective bargaining rights are defined in City Code rather than State law. The Anchorage municipal code does not specifically list mandatory bargaining subjects but requires the City to “bargain collectively in good faith over wages, hours and other terms and conditions of employment.” The Alaskan Supreme Court held that “number of hours worked” was “closely connected with the economic well-being of the individual teacher that the must be held negotiable.” Although, Anchorage did not reduce the hours of these employees, it is closely related to a financial interest and is therefore mandatory.
The arbitrator concluded for two reasons that the parties had established a past practice of negotiating the work schedule. First, the parties had repeatedly negotiated for alternative working schedules and the Property and Evidence employees had worked this schedule for 10 years. He also noted that in 1998 Anchorage unilaterally changed uniformed officers’ shift from 4/10 to 5/8 and the Union won in arbitration.
Although the 9/80 is not a standard schedule in the CBA, the arbitrator concluded that is irrelevant because the parties had a separate written contract establishing it and they had executed this kind of contract before. Management rights clause is irrelevant here because it is limited by the document “except as otherwise provided for in this Agreement.”
