Pub. Safety Emps. Ass'n v. City of Fairbanks, Supreme Court No. S-16501

CourtAlaska Supreme Court
Writing for the CourtWINFREE, Justice.
PartiesPUBLIC SAFETY EMPLOYEES ASSOCIATION, AFSCME LOCAL 803, AFL-CIO, Appellants and Cross-Appellees, v. CITY OF FAIRBANKS, Appellee and Cross-Appellant, and ALASKA LABOR RELATIONS AGENCY, Appellee.
Decision Date15 June 2018
Docket NumberNo. 7251,Supreme Court No. S-16501,Supreme Court No. S-16510

AFSCME LOCAL 803, AFL-CIO, Appellants and Cross-Appellees,
CITY OF FAIRBANKS, Appellee and Cross-Appellant,

Supreme Court No. S-16501
Supreme Court No.
No. 7251


June 15, 2018

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, email

Superior Court No. 4FA-15-02868 CI


Appeal from the Superior Court of the State of Alaska, Fourth Judicial District, Fairbanks, Michael P. McConahy, Judge.

Appearances: Molly C. Brown and Margaret Simonian, Dillon & Findley, P.C., Anchorage, for Appellants and Cross-Appellees. Paul J. Ewers, City Attorney, Fairbanks, for Appellee and Cross-Appellant. Notice of nonparticipation filed by Kimberly D. Rodgers, Assistant Attorney General, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for Appellee.

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Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and Carney, Justices.

WINFREE, Justice.
BOLGER, Justice, with whom MAASSEN, Justice, joins, dissenting.


This appeal requires us to decide whether a city council's reconsideration and ultimate rejection of a labor agreement constituted an unfair labor practice under Alaska's Public Employer Relations Act (the Act). An Alaska Labor Relations Agency (ALRA) panel concluded a violation occurred, and on appeal the superior court affirmed that ruling. But because the record does not support a finding of bad faith on the city's part, and because the failure to ratify the agreement alone cannot be a violation of the Act, we reverse the superior court's decision affirming the ALRA panel's ruling.


A. Facts

This case arises from disputed collective bargaining negotiations between City of Fairbanks and Public Safety Employees Association, AFSCME Local 803 (PSEA). PSEA is the labor representative for the City's police and dispatch employees.

The City is governed by a home-rule charter vesting "executive and administrative power" in the mayor1 and "all [other] powers" in the city council.2 In 2013 the City and PSEA began negotiating a collective bargaining agreement for fiscal years 2014 through 2017. Then-Mayor John Eberhart was the lead negotiator for the

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City's bargaining team,3 and PSEA was represented by its internally selected bargaining team.

Mayor Eberhart and his bargaining team acted in concert with the city council during negotiations.4 It is undisputed that negotiations could not move forward until the city council tentatively approved the City's bargaining position. During months of negotiations the City's bargaining team would reach tentative agreement on financial terms with PSEA and then would present those terms to the city council for tentative approval in executive session.

The negotiating teams reached a tentative agreement; on August 11, 2014, in accordance with a City ordinance,5 the mayor presented the agreement to the city council in open public session for ratification as Ordinance 5953. The city council

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advanced the ordinance to its next regular meeting;6 in the interim the PSEA membership voted to approve the agreement.

The city council heard public testimony about the agreement on August 25. Five people commented, focusing on the City's ability to fund the agreement, how the agreement would affect spending on other labor agreements, the need to attract new employees with higher wages, and the feasibility of reduced work hours. Council members then questioned City employees about the contract, focusing almost entirely on the proposed agreement's cost. The discussion ended with council members debating whether the agreement would save money or cost money in the long run and, if the latter, whether other benefits outweighed the cost. The city council ultimately voted 4 to 3 to adopt the ordinance, with Mayor Eberhart casting the tie-breaking vote. Before concluding the August 25 session, Mayor Eberhart introduced Ordinance 5955, which appropriated funds for the labor agreement. Ordinance 5955 was advanced by a 4 to 2 vote, and the meeting was adjourned at 12:05 a.m. on August 26.

On August 27 then-Council Member Jim Matherly filed a written notice of reconsideration of Ordinance 5953, apparently believing that, because the August 25 meeting had adjourned after midnight, a motion for reconsideration would remain timely through August 27. But the City Clerk rejected his motion as untimely because it was not filed within 24 hours of the vote.7

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Council Member Matherly took up the issue again at the city council's next meeting, on September 8, moving to suspend the rules of procedure to allow reconsideration of Ordinance 5953.8 Council Member Hilling requested clarification on suspension of the rules, and the Mayor, City Attorney, and City Clerk provided clarification based on the Fairbanks General Code and Robert's Rules of Order. The motion to suspend the rules then passed by a 5 to 1 vote.

Once the city council rules were suspended, Council Member Hilling moved to reconsider Ordinance 5953. Council Member Matherly explained that after the August 25 vote he had reexamined the contract and that he was concerned it was overly costly to the City. He further explained that he thought his earlier motion to reconsider had been timely. Before voting on reconsideration, city council members asked several procedural questions of the Mayor, City Attorney, and City Clerk, including how many times an ordinance could be reconsidered and whether public comment was allowed prior to the vote. The three responded that an ordinance could be reconsidered only once regardless of the subsequent vote's outcome and that if the motion to reconsider carried, Ordinance 5953 would be reopened as if the original vote had never taken place. The City Clerk advised that allowing public comment was the city council's prerogative, and the city council then called for additional public comment before voting.

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Nine people commented on the motion to reconsider. Most comments were focused on the cost to the City; people commented that they thought the agreement was too expensive, that the City could not afford the agreement, and that the agreement's costs were greater than the City had been promised during negotiations. City council members then questioned City staff about the City's ability to pay under the agreement's terms. City employees reported that the cost of the agreement was likely higher than calculated during negotiations, that approving the agreement would result in pressure for higher wages in other collective bargaining agreements, and that costs would drastically increase if either party opted out of the agreement. The city council debated the motion, with all six council members focusing comments on the cost to the City. The city council then voted 4 to 2 to reconsider Ordinance 5953.

After the motion to reconsider carried, but before Ordinance 5953 was revoted on, Council Member Hilling moved to postpone the revote to the city council's September 22 meeting. The motion was amended to further postpone the revote to November 3, which Council Member Hilling praised as giving new city council members time to "get up to speed" on the contract dispute before voting.9 The motion to postpone consideration of Ordinance 5953 carried 5 to 1. The city council then approved an amended version of the previously advanced funding Ordinance 5955, increasing the police department's funding by $5,939 but explicitly rejecting all increases contemplated in the tentative labor agreement.

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On November 3 the newly constituted city council voted unanimously not to adopt Ordinance 5953; the proposed collective bargaining agreement with PSEA thus was not approved by the city council.

B. Proceedings

A week after the city council's final vote, PSEA filed a charge with the ALRA; PSEA asserted the City had refused to bargain in good faith.10 PSEA requested that the ALRA find the city council's suspension of the rules and subsequent reconsideration of Ordinance 5953 was an unfair labor practice and order the City to let the tentative agreement stand as the final collective bargaining agreement between the City and PSEA. In April an ALRA hearing officer found probable cause to support the charge.

In November an ALRA three-member board panel decided 2 to 1 that the City had committed an unfair labor practice and ordered the city council to execute the collective bargaining agreement.11 The ALRA panel concluded that: the City was accountable for all actions of the city council; the city council had unreasonably delayed, or "strung out," negotiations;12 under the totality of the circumstances the city council's actions constituted bad faith; an enforceable contract was entered into between the City and PSEA after the first vote on August 25, 2014; the City had no valid excuse to rescind

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the contract; and the remedy for the violation was enforcement of the tentative agreement.13 The ALRA panel ordered the City to "execute the collective bargaining agreement it reached with [PSEA], and that it ratified on August 25, 2014."14

The City appealed the ALRA panel's decision to the superior court. The superior court held that the city council could not be a public employer under the Act15 but that the ALRA's material factual findings were supported by substantial evidence and the ALRA otherwise had authority to order execution of the tentative agreement.

PSEA appeals the superior court's ruling that the city council is not a public employer under the Act. The City cross-appeals the court's affirmance of the ALRA panel's finding of an unfair labor practice and its order that the City execute the collective bargaining agreement.


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