Email sent to the membership on January 23, 2014.
We have a lot of new hires, over 300, since the 8’s were first proposed by DOC Management. Here is a brief update to help bring everyone up to speed. Please take the time to read the linked documents throughout this email as they are relevant and very important. If you already know the history, feel free to skip down to “Grievance Filed & Arbitrated” or “State Filed in Court to Vacate Arbitration Award”.
All security shifts were on a 12 hour a day week on/week off schedule until DOC Management decided to create a new 8 hour a day security shift schedule in the spring of 2012. The mean spirited and punitive motivation behind the DOC’s imposition of the 8’s on Correctional Officers had nothing to do with efficiency or cost cutting. They were still stinging from, among other things, the 2008 No-confidence vote, the 2009-2012 contract Interest Arbitration award, and the 2010 Legislative Audit and intentionally set out to hurt Correctional Officers. Additionally, knowing there would be discontent between Officers on the divergent schedules, they hoped to foster friction between Officers and divide the membership.
Correctional Officers, ACOA, Legislators and pretty much everyone else with any knowledge of Corrections told DOC Management the 8’s would not benefit the Department and stressed the harm it would cause Correctional Officers and their families. The 12 hour shift schedule had worked for over 30 years in Alaska and many of the lower 48’s prison systems are moving to 12’s to reduce overtime costs, help alleviate Officer stress, and save their departments’ money. Legislators asked the DOC not to go forward with the new schedule. Legislators stated:
“…the legislature finds that the Department of Corrections has insufficiently contemplated the long-term impact–including costs of litigation or arbitration, officer and inmate safety, and employee recruitment and retention-of an adjustment to the historical policy of shift staffing…”
– Click to read the full intent language proposed by the Senate Sub-Committee on Corrections
DOC Management ignored everyone and went forward with the new schedule. And, as everyone predicted, it has been a complete and unmitigated disaster. The new schedule disrupted the efficient and safe operations of the correctional facilities, obliterated the FTO program (thus putting new Officers at risk), created scheduling nightmares, harmed employee morale, and raised costs rather than reducing them as the Department argued.
Among other actions, ACOA filed a grievance on March 6, 2012. The grievance was heard by Arbitrator Gaunt in January 2013. Many Correctional Officers stepped up to testify on behalf of all Correctional Officers and we all owe them a debt of gratitude. On a side note, even Director Brandenburg testified that the “blended staffing schedule” is not working. The Director’s admission that the 8’s are failing (in his admission of this he blamed Superintendents for the failure) demonstrates just how detrimental the 8’s have been to the Department. Click here to read the State’s closing brief and click here to read ACOA’s closing brief.
The arbitration decision and award came on April 20, 2013 in ACOA’s favor, which should have ended the 8’s. You can read the whole decision by clicking here, but in summary, Arbitrator Gaunt stated:
“The State did violate Articles 13 and 36 of the Collective Bargaining Agreement when it unilaterally changed the work schedule of Correctional Officers assigned to security posts from an eighty-four (84) hour, 7 days on/7 days off work schedule to a forty-two (42) hour, 5 days a week work schedule.”
Almost immediately Commissioner Schmidt stated that he had no intention of honoring the arbitrator’s decision. (On January 10, 2014, ACOA sent this letter to Legislators about Commissioner Schmidt’s comments on honoring arbitration awards prior to the 8’s decision.) In response to Arbitrator Gaunt’s decision, the State issued this letter stating that the decision did not require the DOC to end the 8’s. ACOA obviously disagreed and asked the arbitrator for a clarification of her decision. In a letter dated May 16, 2013 Arbitrator Gaunt responded:
“The State misreads my decision of April 20, 2013 if it believes the Award does not require restoring security Correctional Officers to the 84-hour schedule from which they were moved. The whole point of the make whole remedy was to restore the impacted officers to the situation in which they would have been if the State’s contract violation had not occurred.”
On August 9, 2013 the State filed a complaint to vacate the arbitrator’s award in Superior Court. In seeking to overturn the decision, the State argued that Arbitrator Gaunt, a nationally respected arbitrator, committed gross error and acted outside the purview of her authority.
The Superior Court held a Status Conference Hearing on the case (No. 3AN-13-08761CI) on October 9, 2013 and the State filed it’s opening brief on November 21, 2013. ACOA filed a rebuttal brief on January 3, 2014 and we just received the State’s reply to our opposition. I would strongly suggest that you read these briefs, but in short the State argued that it would have to hire more Officers if it were forced to stop the 8’s and that was outside of the arbitrator’s authority. It also argued that the arbitrator committed “gross error” in evaluating the contract language. ACOA argued that the State’s defense was a red herring and the decision did not require the hiring of more Officers. ACOA further argued that the arbitrator properly interpreted the contract language and that the Alaska Supreme Court has consistently ruled that arbitrator decisions are binding except in extraordinary circumstances.
ACOA has one more rebuttal brief to file on January 26, 2014. Though unlikely, the Judge can alter the upcoming deadlines. As of today, here is a timeline of court dates:
- August 9 , 2013 – State files a Complaint to Vacate the arbitrator’s award in Superior Court with Judge Mark Rindner
- October 9, 2013 – Hearing before Superior Court Judge Rindner – Case No. assigned 3AN-13-08761CI & briefing schedule agreed upon
- November 21, 2013 – State files its Memorandum in Support of Motion for Summary Judgment to vacate Arbitrator Gaunt’s Decision
- January 3, 2014 – ACOA files its Opposition to the State’s Motion for Summary Judgment
- January 18, 2014 – State filed its Reply to ACOA’s Opposition
- January 26, 2014 – ACOA’s final reply brief is due
- TBD – Oral Arguments
- TBD – Court Decision
We expect Judge Rindner will schedule oral arguments after ACOA’s rebuttal brief is filed. ACOA also made a cross motion asking the Judge to enforce the arbitration award and his decision will address that motion as well. We know how important this is to so many of you. This has been a long and expensive fight that affects everyone, not just the Officers currently forced to be on 8’s. So, win or lose, we will distribute the decision as soon as possible.
Keeping Legislators Informed
On November 22, 2013, we sent this letter to the Governor requesting that the DOC adhere to the arbitrator’s decision and put a stop to the “blended staffing schedule”. Then, on January 10, 2014, we sent this letter to Legislators with the letter to the Governor enclosed for their review. After nearly seven months of delay, the State continues to refuse to abide by an Award that it agreed would be final and binding. We want to be certain that Legislators are informed as we approach the legislative session. They should know that the DOC ignored them, that the State is continuing to incur litigation costs, and that the costs associated with the implementation of the 8’s continues to increase every month the DOC refuses to implement the arbitrator’s decision.
On behalf of the Board,