Wright v. City of Gary

• Decision Date: 15 March 2012
• Docket Number: No. 45A04–1107–PL–362.,45A04–1107–PL–362.
• Parties: Ayanna WRIGHT and American Federation of State, County, and Municipal Employees, Council 62, Local 4009, AFL–CIO, Appellants–Respondents, v. CITY OF GARY, Indiana, Appellee–Petitioner.
• Court: Indiana Appellate Court

963 N.E.2d 637

Ayanna WRIGHT and American Federation of State, County, and Municipal Employees, Council 62, Local 4009, AFL–CIO, Appellants–Respondents,

v.CITY OF GARY, Indiana, Appellee–Petitioner.

No. 45A04–1107–PL–362.

Court of Appeals of Indiana.

March 15, 2012.

William R. Groth, Fillenwarth Dennerline Groth & Towe, LLP, Indianapolis, IN, Attorney for Appellants.

Susan M. Severtson, Law Office of Susan M. Severtson, Munster, IN, Bonnie C. Coleman, Hodges & Davis, P.C., Merrillville, IN, Attorneys for Appellee.

OPINION

BARTEAU, Senior Judge.

STATEMENT OF THE CASE

Following an arbitration award in favor of Appellants Ayanna Wright and the American Federation of State, County, and Municipal Employees, Council 62, Local 4009, AFL–CIO (“AFSCME Local 4009” or, collectively with Wright, “the Union”), Appellee City of Gary, Indiana (“the City”), petitioned the trial court to vacate the award. The Union counterclaimed for enforcement of the award. Both parties moved for summary judgment. After a hearing, the trial court granted the City's motion for summary judgment and denied the Union's motion for summary judgment, vacating the arbitrator's award. Concluding that the arbitrator did not exceed his powers by issuing the award to the Union, we reverse and remand.

ISSUE

The Union raises two issues, which we consolidate and restate as: whether the trial court erred by granting the City's motion for summary judgment and denying the Union's motion for summary judgment.

FACTS AND PROCEDURAL HISTORY

The City and AFSCME Local 4009 are parties to a collective bargaining agreement (“CBA”). In setting forth which employees are covered by the CBA, Section 1.1 states, “The Employer recognizes the Union as the sole and exclusive collective bargaining representative of employees not represented by another union. Excluded from the bargaining unit are ... confidential employee[s] as defined in Gary City Ordinance 6243.” Appellants' App. p. 3. Gary City Ordinance 6243, in turn, defines a confidential employee as “an employee whose unrestricted access to confidential personnel files or whose functional responsibilities or knowledge in connection with the issues involved in dealings between the employer and its employees would make his membership in an employee organization incompatible with his official duties.” Appellee's App. p. 86. The CBA further states, “This agreement is applicable to the employees of the City of Gary, Gary Park Department, and Gary Health Department, as noted in the job classifications in Schedule A who are members of the unit described in Section 1.1.” Appellants' App. p. 3. Schedule A of the CBA lists the position of administrative assistant to the Gary Fire Civil Service Commission (“GFCSC”) as a covered classification. See id. at 23.

The CBA's grievance procedure is “the exclusive method for resolution of disputes between an employee or [AFSCME Local 4009] and the Employer of all claims of breach and/or violation of the Agreement and applicable Personnel Rules.” Id. at 8. The CBA further states that AFSCME Local 4009 may refer the grievance to arbitration if it is not settled in accordance with the grievance procedure. Under an express provision of the CBA, “[t]he arbitrator shall have no right to amend, nullify, ignore, add to, or subtract from the provisions of this Agreement.” Id. at 10. According to the CBA, the arbitrator's decision is binding on both parties.

On December 10, 2008, the City informed Wright, a City employee as well as the president of AFSCME Local 4009, that her City position was being eliminated due to economic circumstances. The CBA sets forth a “bumping” process in the event of workforce reductions, in which an employee whose position is being eliminated may replace an employee with lower seniority. A seniority list is to be provided to AFSCME Local 4009's president every six months, and an employee's standing on the list will be final unless challenged within thirty days after the list is posted on AFSCME Local 4009's bulletin boards.

The City's human resources director, Shirley Walls, gave AFSCME Local 4009 a seniority list on December 12, 2008. As the City's human resources director, Walls was also the custodian of the City's employee personnel records. Walls certified the seniority list as true to the best of her knowledge. The list indicated Wright's hire date as November 1, 1994. The list indicated the hire date of Pamela Oliver, the GFCSC's administrative assistant, as June 26, 1995. On December 18, 2008, Wright elected to bump into Oliver's position. At the instruction of the City's human resources department, the GFCSC's chairman, Dwight Gardner, interviewed Wright on December 30, 2008. Gardner determined that she was fully qualified for the GFCSC's administrative assistant position.

Walls spoke with Wright and followed up that conversation with a letter, dated December 30, 2008, which indicated that Wright could not bump into the GFCSC's administrative assistant position:

[T]he City's position is that the Administrative Assistant position for the Fire Commission is non union. Notwithstanding that the position is listed in the bargaining unit contract, after a thorough review, it is determined that the duties are of an administrative and confidential nature.

Appellee's App. p. 100. At a January 2, 2009 meeting, the GFCSC voted unanimously to retain Oliver because she had been a good employee.

Wright declined an invitation to bump into another position. The Union filed a grievance on her behalf, which requested that Wright be permitted to bump into the GFCSC's administrative assistant position. The City denied the grievance. The Union and the City subsequently submitted the matter to arbitration pursuant to the CBA. In December 2009, an evidentiary hearing was held before Arbitrator Edward P. Archer. At the outset of the hearing, the parties stipulated that the issue to be decided was whether the City violated the CBA by denying Wright's request to bump into the GFCSC's administrative assistant position, and if so, what should be the remedy. During opening statements, the City asserted that the GFCSC “is semi autonomous to the Civil City,” id. at 18, the GFCSC did not sign the CBA, and the CBA has no effect on the GFCSC's administrative assistant position.

At the hearing, the City contended for the first time that Oliver's hire date on the seniority list was incorrect and that her correct hire date was earlier than Wright's. Oliver testified that she has been a member of AFSCME Local 4009 since October 2003.¹ She also stated that she had never seen nor asked to see any prior seniority lists. The GFCSC's attorney, Clyde Compton, testified that Gary City Ordinance 5882 provides that the GFCSC is to select its own administrative assistant. He also stated that the files maintained by the GFCSC's administrative assistant relate to the City's firefighters. Gardner testified that the City's firefighters are represented by the Professional Firefighters Association and not an AFSCME local.

Arbitrator Archer issued a decision and award in favor of the Union in February 2010. In his decision, Arbitrator Archer determined that the GFCSC's administrative assistant position was not a confidential position within the exclusionary language of Section 1.1 and was covered by the CBA. He also noted that because he has no authority to modify or ignore the CBA, regardless of whether the CBA conflicts with a city ordinance, the GFCSC's administrative assistant position was listed in the CBA as part of the bargaining unit and therefore subject to the bumping process. Arbitrator Archer acknowledged the City's argument that Oliver's correct hire date was earlier than Wright's but found that because there was no evidence that Oliver timely challenged the incorrect hire date, it was final for bumping purposes. Arbitrator Archer concluded that the City violated the CBA by denying Wright's request to bump into the GFCSC's administrative assistant position. He ordered Wright to be placed in that position and for Oliver to be permitted to engage in the bumping process.

In May 2010, the City filed with the trial court a petition to vacate the arbitration award. The Union counterclaimed for enforcement of the award. The parties filed cross-motions for summary judgment. In June 2011, the trial court granted the City's motion for summary judgment and denied the Union's motion for summary judgment. In its order, the trial court found that the GFCSC is a separate political entity and that the City's execution of the CBA did not subject the GFCSC to the CBA. After citing Indiana Code section 34–57–2–13(a)(5) (1998), the trial court concluded that “[t]he Arbitrator went beyond the parties who agreed to the arbitration and ordered a remedy directed against a non-party, the GFCSC.” Appellants' App. p. 73. The trial court also concluded that Arbitrator Archer exceeded his powers under Indiana Code section 34–57–2–13(a)(3) by issuing an award that disregarded the city ordinance providing that the GFCSC is to select its own administrative assistant, relied on Oliver's incorrect hire date, and determined that the GFCSC's administrative assistant position was not confidential. The Union now appeals.

DISCUSSION AND DECISION

The Union contends that the trial court erred by granting the City's motion for summary judgment and denying the Union's motion for summary judgment. When reviewing the entry or denial of summary judgment, our standard of review is the same as that of the trial court: summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Ind. Trial Rule 56(C); Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1269–70 (Ind.2009). All facts established by the designated evidence and reasonable inferences drawn from those facts are construed in favor of the nonmoving party. Naugle v. Beech...