In re

City of Fairbanks

and

Public Safety Employees Association

Fairbanks Police Dept. Employees Chapter

 

121 LA (BNA) 978

 

May 13, 2005

 

Jean A. Savage, Arbitrator

 

Issue 

 

The arbitrator frames the issue as:  

 

Whether the City violated the collective bargaining agreement when it reduced the Grievant’s wage rate upon her assignment to front desk clerk duties? If so, what is the remedy? 

 

 Statement of Facts 

 

This grievance arose following an agreement between the City and the Union concerning a Front Desk Clerk. On May 24, 2004, the Union and the City agreed on a Letter of Agreement (LOA) primarily concerning Lead Dispatcher positions. In addition, the parties agreed to the following:  

 

To insure an even distribution of work-load, the City of Fairbanks shall hire and staff a minimum of one (1) full-time Front Desk Clerk position, to coincide with the creation of Lead Dispatchers. Management shall strive to identify tasks that can be moved from the existing Dispatchers to that of the Front Desk Clerk. 

 

The Grievant began employment at the City as a Dispatcher on April 1, 2004, and was in her probationary period when she learned that the City was instituting a Front Desk Clerk position. She expressed an interest because the job required a regular workweek, Monday through Friday from 10 am to 6 p.m. while Dispatchers work on shifts. According to the Grievant, a regular workweek would help her obtain childcare. The Grievant learned from a fellow employee that the rate would be $14.02, less than her rate of $17.30. 

 

The City did not identify tasks for the position or prepare a Front Desk Clerk position description and the City did not post a vacancy announcement for a Front Desk Clerk. When the Grievant agreed to perform the front desk duties, the City changed her classification to “Clerk,” a previously classified position, and paid the Grievant $14.02 per hour, the base rate of that position. The Grievant began working in the Clerk classification on July 1, 2004. 

 

In late July, Union President Tara Tippett became aware that the Grievant’s wages had been reduced.2 On July 26, 2004, President Tippett wrote a memorandum to the Grievant’s supervisor, in which she asserted that the City had violated Article XV, Section 4, of the parties’ collective bargaining agreement. The City responded that the Grievant had been offered the position “at her request, due to personal reasons” and that “she understood that this was a voluntary demotion that would result in a reclassification to Clerk and a reduction in pay.” The Union filed a formal grievance on August 3, 2004, characterizing the action as a “voluntary demotion.” In addition, the Union also asserted a violation of Art XXIII. 

 

In September 2004, the City’s Chief of Staff, Patrick Cole, learned that the City Council had not approved a budget for the front desk position. The City issued a 30-day lay off notice to the Grievant on September 9, 2004, noting a lack of funding for the position. Simultaneously, the City began the process to fund the position properly. Subsequently, the Clerk position was legally funded and the City rescinded the Grievant’s layoff notice on October 12, 2004. This dispute remained unresolved and the parties set it for arbitration. 

 

Positions of the Parties 

 

A. The Union: 

 

The Union asserts that the arbitrator must reconcile Article XV, Sections 4 and 5. According to the Union, Section 4 is applicable and the City violated that section by failing to pay the Grievant the base rate for a Dispatcher until the parties agree on a wage rate for the Front Desk Clerk position. According to the Union, when the City considered a clerk position at the front desk, the City was not privileged to assign a wage rate to the position. Until the parties reach a negotiated wage rate on a new Front Desk Clerk position, the Union asserts that no one can say whether a particular rate is appropriate. If the arbitrator does not find Section 4 applicable, the Union asserts the result would be to make Article 15, Section 4 meaningless. 

 

Section 5, the Union argues, is inapplicable. Without a description and classification, the Union asserts that it is unknown whether a Front Desk Clerk position will be lower rated than that of Dispatcher. The Union argues that the assumption that a Front Desk Clerk base rate would be less than the Dispatcher base rate has not been tested in the collective bargaining process. Consequently, the Union asserts that the Grievant could not volunteer for a lower-rated classification as provided in Section 5. In addition, the Union argues that the last sentence in Section 5 3 shows that the section is intended to apply to temporary assignments. The Union argues that Section 5 has been applied where reductions in pay were temporary. The Union also asserts that the fact that the Grievant volunteered for front desk clerk duties is legally insignificant when all the factors in this grievance are considered. 

 

The Union argues that the scope of this dispute is broader than a simple wage rate. The Union points out that the failure to negotiate a wage rate for a Front Desk Clerk position is a violation of Article XV, Section 6. That section requires negotiations on wage rates when new equipment or procedures are instituted resulting in new positions. According to the Union, the front desk duties constitute a new procedure because the duties changed from those performed by previous occupants of the Clerk position. Previously, the Union asserts that the clerks had no contact with the public and answered no calls; the dispatchers were responsible for communications with the public. According to the Union, the last clerk was solely responsible for maintaining and retrieving documents for the police, the public, and others with proper authorizations. The dispatchers assumed those duties, the Union asserts, when the last clerk left in late 1999 or early 2000. 

 

In addition, the Union argues that it is essential to look at the collective bargaining agreement and the City’s rules and procedures to see whether the Grievant is properly paid. The Union asserts that in July 2004 when the City first placed the Grievant in the Front Desk Clerk position, that position was not legal or properly funded. The Union also argues that the situation became confused and resulted in a grievance because the City did not follow the collective bargaining agreement and Chapter 50 of the Personnel Code. The Union asserts that Chapter 50, which the Union admits may not apply, provides that no appointment may be made to a position unless the position is identified in the classification system and funds are available. The Union argues that there is no evidence to show that a description for the job title of Front Desk Clerk has been created or that the position has been classified. In addition, the Union points out that Article XII, Section 2, precludes a probationary employee from applying for vacancies in the department. In these circumstances, the Union concludes that the Grievant remained a Dispatcher with assigned duties at the front desk. 

 

The Union also asserts that Article XXIII, Section 1, provides that no employee may negotiate individual arrangements or any provision which conflicts with the collective bargaining agreement. Giving effect to this section is required, the Union argues, to avoid undermining the integrity of the collective bargaining agreement and to avoid a situation where the agreement would have no influence on the wages, hours, and working conditions of covered employees. According to the Union, the Grievant was victimized not by what she did, but by the City’s actions.

 

Finally, the Union argues that the Grievant had worked for the City for approximately two months when she inquired about the possibility of assuming the Front Desk Clerk position. The Union notes that now two attorneys are arguing about collective bargaining provisions that are esoteric and require arbitral interpretation. To say that the Grievant should have understood the consequences of her “innocent submission to the process” is unreasonable, according to the Union. Considering all these factors, the Union asks the arbitrator to sustain the grievance. 

 

B. The City: 

 

The City argues that the Grievant knew that her rate of pay in the Front Desk Clerk position would be lower. Yet, according to the City, the Grievant volunteered, so that is the end of the issue. The City also argues that Union representatives were aware that the rate for the new position would be lower. 

 

According to the City, the issue before the arbitrator is to reconcile Sections 4 and 5 of Article XV. The City asserts that the six-month limitation in the last sentence of Section 5 is applicable only if the City requires out of classification work. Article XXIII, Section 1, the City asserts, is a general provision that is trumped by Section 5 that specifically references a volunteering employee. Further, the City argues that the examples of other employees working out of classification are not applicable here. Other issues, such as what is the appropriate rate for a Front Desk Clerk, are not ones that the arbitrator is tasked with deciding, according to the City. 

 

The City admits errors in establishing the Front Desk Clerk position, including permitting the Grievant to work in the position without a budget amendment in place. When the City discovered its error, the City asserts that management took immediate action to get the proper budget authorization. The City also admits that possibly the Clerk position should have been posted. 

 

Discussion and Analysis 

 

The parties agree that the issues centers on the interpretation of Sections 4 and 5 in Article XV, Classification and Hourly Wage Rates. Section 4 provides:  

 

An employee who changes classification, for other than disciplinary reasons, will begin at the “Start Step”within that classification, unless that would result in a pay decrease. In that case the employee will continue to earn his/her current wage until qualified for the next step increase within the new classification which will result in a pay increase. 

 

Section 5 provides:  

 

The City agrees to the utilization of employees within their respective classifications, with the further understanding that should it become necessary to work an employee in a higher rated classification for any period exceeding one (1) hour, the employee will be paid at a higher base rate of pay for working in that classification. Working in a lower rated classification will not result in a reduction of pay unless the member volunteers to work in said lower rated classification. In such cases the volunteering employee shall be paid at the rate of the lower classification. Members will not be required to work outside their classification for a consecutive period beyond six (6) months. 

 

The arbitrator finds that Section 5 is not applicable in this situation for the following reasons. The first sentence Section 5 begins with the City’s agreement to utilize employees within their classifications and then signals that exceptions will follow. The interpretation that working outside one’s classification is an exception is supported by the last sentence which provides that the City cannot require out of title work for more than six months at any one time. Section 5 on its face describes situations where an employee retains his or her classification, but due to necessity is working in another classification. 

 

This interpretation is supported by testimony at the hearing. Chief of Staff Cole testified that Section 5 was meant to allow an extra sergeant on a shift to work as a patrol officer to meet a need for another patrol officer on that shift. The record does not reveal whether Section 5 has been utilized in other situations. Chief of Staff Cole also testified that a bargaining unit employee, a sergeant, volunteered to work as a patrol officer, a lower rated classification, and he was paid at a lower rate. However, the record does not reveal the circumstances that led to this situation or whether the employee’s classification changed. 

 

Section 4, on its face, is applicable in this dispute because it concerns a “change in classification” for other than disciplinary reasons. Section 4 provides that when an employee changes classifications, the employee will go to the first step of the new classification unless that base pay rate is less than the employee is currently earning. In that case, the employee retains his or her pay rate wage “until he or she qualifies for a step increase in the new classification which gives the employee an increase.” Significantly, Section 4 is not limited in any way except for the provision that it does not apply to classification changes for disciplinary reasons. 

 

The City changed the Grievant’s classification from Dispatcher to Clerk. The reason for the change on the Grievant’s payroll change form is “[a]warded Front Desk Clerk Position.” Based on the City’s action, a change in classification, Section 4 appears to be applicable. There is no dispute that the Grievant volunteered to work on the front desk and knowingly accepted a lower rate of pay. However, Section 4 of the agreement allows no exceptions to the provision that a change in classification will not result in a decrease in an employee’s current wage. 

 

The City argues that Union representatives were aware that the rate for the new position would be lower. Chief of Staff Cole testified that he met with the Union’s attorney and Union President Tippett about the rate. However, there is no evidence that indicates the Union agreed that the Grievant would be paid at the Clerk rate. Furthermore, no details about this meeting are in the record and Union President Tippett did not testify about it. Even if the Union knew that the City intended to change the Grievant’s classification and rate of pay, such knowledge would not preclude the Union from filing a grievance. 

 

Further, Article XXIII, Section 1 provides that no employee “shall be asked or required to make any written or oral agreement which may in any way conflict with this Agreement.” In other words, an employee cannot make an agreement that is inconsistent with Section 4. Thus, the Grievant could agree to a change in her classification, but she could not agree to a reduction in pay, contrary to Article 4, with that change in classification. The parties negotiated an employee’s pay when a change in classification occurs. Neither the City nor the Grievant may act contrary to that negotiated agreement. In changing the Grievant’s pay contrary to Article XV, Section 4, the City violated Article XXIII, Section 1. 

 

Although Section 4 is applicable in this dispute, this conclusion does not prevent an employee from retaining his or her classification and agreeing to work for less pay in a lower rated classification. Article XV, Section 5, clearly permits this situation. Further, it does not limit the time an employee may spend working in another classification when the employee volunteers. In such a situation, the City might annotate a payroll change form to show that while the employee was being paid at a lower rate, the employee retained his or her classification. However, in this dispute, there is no evidence that the Grievant’s classification change is temporary although she testified that she hopes to return to Dispatch in the future. As of the hearing date, the Grievant had been performing front desk duties about nine months. 

 

The City’s actions with regard to the front desk position reveal that the City made errors in establishing this position and did not follow its agreements.4 First, the City admits that it was error to allow the Grievant to occupy the Clerk position without a budget amendment for the position. Second, the City “awarded”the Grievant a Front Desk Clerk position, but the position did not exist. Despite the Letter of Agreement which provided that the City was to “strive to” identify tasks for a Front Desk Clerk position, there are no written specifications for such a position and it has not been classified. The Union’s assertion that the front desk duties are different from those previously performed by clerks is unrebutted. In fact, Chief of Staff Cole admitted that front desk duties are “more complicated than the old clerk job.” 

 

Third, until the hearing, there is no evidence in the record that the City took any action to fulfill its bargaining obligation under Article XV, Section 6. That provision requires the City to “meet and confer on the appropriate rates”when new procedures result in new or changed positions. At the hearing, Chief of Staff Cole testified that he is willing to negotiate about a Front Desk Clerk position. 

 

Fourth, the City did not fill the clerk position at the front desk according to the procedures set forth in Article XVIII. That article requires “an equitable examination process,” including a vacancy announcement within the Police Department. The City admitted that it was possible that the job should have been posted. Instead, the City placed the Grievant at the front desk, changed her classification to Clerk, and paid her the Clerk rate that already existed.

 

Fifth, the Grievant was a probationary employee at the time the City changed her classification. According to Article XII, Section 2, probationary employees are “precluded from applying and being considered for any classification vacancy within the department.” 

 

In summary, although the parties raised the actions discussed above, the arbitrator is not deciding whether the City has violated the collective bargaining provisions noted. Rather, the arbitrator’s findings are limited to Article XV, Section 4, and Article XXIII, Section 1, which are also applicable to this situation. The City violated Article XV, Section 4, by changing the Grievant’s base pay rate when the City changed her classification from Dispatcher to Clerk for non-disciplinary reasons. Although the Grievant consented to the change in her base pay rate, Article XXIII, Section 1, precludes her from making this agreement because it is contrary to Article XV, Section 4. 

 

Remedy 

 

The City must make the Grievant whole in pay and benefits for the difference between her rate as a Dispatcher and the Clerk rate from July 1, 2004, forward. Further, the City must continue to pay the Grievant her current wage as provided in Article XV, Section 4, until she is “qualified for the next step increase within the new classification which will result in a pay increase.” 

 

Award

 

Having carefully considered all evidence submitted by the parties concerning this matter, the arbitrator concludes that the City violated Article XV, Section 4, and Article XXIII, Section 1, of the parties’ collective bargaining agreement by reducing the Grievant’s wage rate when it changed her classification to Clerk. 

 

The grievance is sustained. 

 

Notes 

 

1 References to APEA should be read as PSEA given the parties agreement that PSEA currently represents the bargaining unit employees in the Fairbanks Police Department. 

 

2 Ms. Tippett became Union President about June 18, 2004. 

 

3 That sentence provides that employees “will not be required to work outside their classification for a consecutive period beyond six months.” 

 

4 The Union asserted that the Fairbanks General Code, Chapter 50, Personnel, may be applicable. The parties submitted Chapter 50, Personnel, of the City’s Code as Joint Exhibit No. 6 in another case heard by the arbitrator, P. Yamamoto, Case No. F04-04. Chapter 50 requires that the City maintain written specifications for each position classification. However, Section 50-2, Coverage, states that “This chapter shall apply to all employees of the city: (1) Not subject to collective bargaining agreements; ...” Inasmuch as the Grievant is covered by the collective bargaining agreement, the arbitrator will not consider Chapter 50.

 

 

Relevant Provisions of the Collective Bargaining Agreement

 

Article IV Grievance Procedure 

 * * * 

Section 6. 

 * * * 

B. ... The Arbitrator shall make a written report of his/her findings to APEA 1 and the City within thirty (30) calendar days of the conclusion of the hearing or thirty (30) calendar days following submission of any post-hearing briefs. The Arbitrator will be governed by Voluntary Labor Arbitration Rules of the American Arbitration Association (AAA) as amended and in effect at the time the grievance is filed. The decision of the Arbitrator shall be final and binding on both parties to this agreement and enforceable under the provisions of A.S. 09.43.010-180, as may be amended. 

 

C. The authority of the arbitrator shall be limited to the application and interpretation of this agreement. The arbitrator shall consider and decide only the specific issue or issues submitted in writing and shall have no authority to decide other issues. He/she shall have no authority to amend, alter, modify or otherwise change the terms or scope of this agreement. The final decision of the arbitrator shall be implemented as soon as possible, but not later than thirty (30) calendar days after the final decision is rendered. 

 

Section 7. Each grievance or dispute will be submitted to a separately convened arbitration proceeding, except where the City and APEA mutually agree to have more than one grievance or dispute submitted to the same arbitrator. 

 

Section 8. The City and APEA shall bear the expense of their respective representatives and witnesses. The other expenses involved in such arbitration proceeding shall be paid by the non-prevailing party, as determined by the arbitrator.    * * * 

 

Section 10. Except for appeals of disciplinary actions in accordance with Article 14, when any matter in dispute has been referred to the Grievance Procedure set forth above, the conditions and provisions prevailing prior to the time the dispute arose shall not be changed until the decision is rendered. When the arbitrator so rules, the decision shall be made retroactive to the time the dispute began. 

 

Article XII  Probation 

 

Section 1. ... Non-commissioned personnel shall serve a probationary period of six (6) months. ... 

 

Section 2. Personnel in a newly hired probationary status shall be precluded from applying and being considered for any classification vacancy within the department. 

 

Article XV   Classification and Hourly Wage Rates 

 * * * 

Section 4. An employee who changes classification, for other than disciplinary reasons, will begin at the “Start Step” within that classification, unless that would result in a pay decrease. In that case the employee will continue to earn his/her current wage until qualified for the next step increase within the new classification which will result in a pay increase. 

 

Section 5. The City agrees to the utilization of employees within their respective classifications, with the further understanding that should it become necessary to work an employee in a higher rated classification for any period exceeding one (1) hour, the employee will be paid at a higher base rate of pay for working in that classification. Working in a lower rated classification will not result in a reduction of pay unless the member volunteers to work in said lower rated classification. In such cases the volunteering employee shall be paid at the rate of the lower classification. Members will not be required to work outside their classification for a consecutive period beyond six (6) months. 

 

Section 6. Where new types of equipment or procedures are instituted resulting in new or changed job classifications not established by this Agreement, the City and Chapter shall meet and confer on the appropriate rates for such classifications.

 

Article XVIII  Filling of Vacancies 

 

Section 4. When a vacancy occurs or a new position is established, the Chief of Police shall give first preference to the promotion or transfer of any member from within the Police Department. The announcement shall be circulated and members shall indicate, in writing, of their desire to apply for the position. All interested employees who possess the requisite qualifications will receive an interview prior to the commencement of further recruitment. Employees offered and accepting a promotional opportunity will be placed at the entry-level step or such other step of the higher range that will provide an increase in salary. The length of service will remain unbroken and all accrued benefits shall remain unchanged. A new classification seniority date shall apply from the date of entry into the new position. 

 

Section 5. Bargaining unit members who have completed their initial probationary period shall have the right to compete for any vacancy within the Bargaining Unit for which they may be qualified. All accrued benefits and length of service shall remain unbroken. 

 

 Section 6. Consistent with Article XVIII, Section 4, regular bargaining unit employees seeking promotional or lateral transfer or transfers to a different class within the same salary range or a voluntary demotion to class [sic] with a lower salary rate may apply and compete for open or vacant positions in the bargaining unit. 

 

Article XXIII  Oral or Written Agreement 

 

Section 1. No member covered by this Agreement shall be asked or required to make any written or oral agreement which may in any way conflict with this Agreement. 

 

Section 2. No member covered by this Agreement shall ask or require the City to make any written or oral agreement which may in any way conflict with this Agreement. 

 

Article XXVI  Miscellaneous  

 * * * 

Section 2. In the case of any difference or conflict between the provisions of this agreement and the provisions of the Fairbanks Personnel Ordinance or the provisions of any City imposed policy or rules, the provisions of this Agreement shall govern. ...