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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
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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