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Arbitration & Dispute Resolution March 19, 2012
Catherine E. Basham, Esq. Senior Deputy County Counsel County of Fresno, CA 2220 Tulare Street, Fifth Floor Fresno, CA 93721 Anne L. Yea, Esq. Attorney at Law Weinberg. Roger & Rosenfeld 1001 Marina Village Parkway, Suite 200 Alameda, CA 94501
Promotions I et al.) CSMCS Case ARB#11-0232
Dear Counsel: Please find enclosed a copy of the Arbitrator's Award in the above-referenced matter between the parties. This document represents the Arbitrator's complete analysis, recommendations and award under the appropriate administrative code and LMOU. Also, please find enclosed a copy oftbe Arbitrator'S Fee Statement for payment by check at your earliest convenience to the Arbitrator at the address below. It has been a privilege to serve the parties in this most important matter.
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1893 N. College Circle • Long Beach, CA90815 (562) 594-6132 • E-Mail: email@example.com· (206) 292-0556
In the Matter of Arbitration Between
COUNTY OF FRESNO, CA
SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 521
CSMCSNo~j~32 Hearing Date: Briefs Received: Award Date: Hearing Site: Arbitrator:
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ARBITRATOR'S OPINION AND AWARD
February 27, 2012 March 9,2012 March Fresno County Administration Building
,JONATHAN S. MONAT, PhD
Appearing for the Company:
Catherine E. Basham, Esq. Senior Deputy County Counsel
County of Fresno, CA 2220 Tulare Street, Fifth Floor Fresno, CA 93721 Appearing for the Union:
Anne L. Yea, Esq.
Attorney at Law Weinberg, Roger & Rosenfeld 1001 Marina Village Parkway, Suite 200 Alameda, CA 94501
Court Reporter: Vanessa Harskamp, CSR Esquire Deposition Solutions 155 East Shaw Avenue, Suite 100
Fresno; CA 93710
INTRODUCTION A hearing in the above-referenced matter was held on February 27, 2012, parties represented as stated above. The parties agreed the matter was properly before the Arbitrator for a binding decision if it can be implemented by a Department Head under the terms of the parties' Memorandum of Understanding (MOU) (Jl). If it must be acted upon by the Board of Supervisors, the decision is advisory. The Union called four witness J G Payoyo). The County called
four witnesses (Javier Gomez, Carlos Cortes, Karl Gilbert, Judy Lemos). A Court Reporter recorded the proceedings but the parties decided no transcript was needed. Post-hearing briefs were filed via e-mail and by mail. Briefs were received on March 8 and 9, 2012, and the hearing closed at that time. The parties requested the Arbitrator remand to the parties in the event there is a remedy but retain jurisdiction in the event the parties cannot agree on a remedy. ISSUE The issue is essentially' whether or not the County violated the MOU and/or Personnel Rules or Salary Resolution when it denied 3S grievants full-combination (level) promotions for which they were eligible prior to June 1, 20 I O. BACKGROUND Effective May 31,2010, the County of Fresno froze all full-combination promotions due to budgetary concerns, the freeze remaining in effect since implementation. Prior to the freeze, some of the
grievants had received approval for promotion at the Department level, others by Deputy Directors of their Departments and still others received no approval. Personnel Rules allow such promotions which are subject to the approval by the Director of Personnel Services.
t The AIbitrator's notes do not reflect the exact wording of the issue in the absence ora transcript.
POSITION OF THE SEnJ The Union argued that the promotion freeze denied the grievants approved promotions. Personnel Rule 11012.3 provides that promotion from an entry class to a position at the experienced level in a series is made at the option of the Department Head but can only become effective upon approval by the Director of Personnel Service. Salary Resolution section 411 sets forth the normal system of salary advancement through pay step's based on satisfactory service with a 5% increase over prior the base salary (Section 413.2). Special salary upgrading for an incumbent of a permanent position performing the job of a higher level position is available if the Director of Personnel Services determines it is in the best interests of the County (413.9). The promotion freeze has an unfair impact on those who have earned a promotion (more so for those at the top step). Step increases with each six step pay classification have not been frozen. Only those who are not at the top step will advance. Employment Services Manager (ESM) Cortes testified the grievants have eligible for promotion to the next level since the dates shown in Union Exhibit 2, column 7. To be eligible, an employee must meet minimum classification qualifications as verified by Personnel and whether the promotion is operationally necessary. Waivers may be granted by the County Administrator's Office. However, the one waiver requested was not granted. Three grievants testified at the hearing. an Office Assistant, Step 6. His request
for promotion was approved by his supervisor on June 7, 2010, and by his second line manager June 15, 2010. It was initialed by the Deputy Director of DSS. On July 6, he was told the Request for Promotion (RFP) would Dot be processed because of the freeze. The grievant claimed he sometimes trains other temporary employees in the use of File net. _. was denied a promotion to Eligibility Worker ill
which has similar duties and functions as EWII but allows the ill to act in a lead capacity. Mr. _estified that he has trained EWIs at Heritage and is developing procedures and guidelines at Sunnyside because no existed there. is an CSO I who requested promotion to CSO II. Mr. __
testified that the II requires more experience and the ability to work with less supervision. His Director approved him for promotion. In addition, he was assigned to the Court Team for one year but received no more supervision than the CSO lis and ills. As typical grievants, their duties are similar to the entry level class but require less supervison in the higher class functions because of their knowledge and skill learned in their years in the entry class. The grievants are able and do perform the full range of duties of the higher classes in their respective classification series. The management rights clause must be interpreted in conjunction with, and limited by, the Personnel Rules and the Salary Resolution provisions. It is inconsistent with the spirit of these rules to refuse to proceed with promotions even though they are earned. The Union requests that the grievance be sustained, the promotions processed and grievants made whole. If a different remedy is appropriate, the Arbitrator should remand to the parties to attempt to reach an agreement on a remedy consistent with the Arbitrator's opinion, with the option to return to the Arbitrator in the absence of an agreement. POSmON OF FRESNO COUNTY
The County argued that the Union failed in its burden of proof and that all 35 grievances should be denied. There was no violation of Meyers-Mil as-Brown nor were sections of the Salary Resolution, Personnel Rules and an alleged e-mail directive misapplied. The e-mail was Dot a management directive. Freezing promotions was not a misapplication of the Salary Resolution or Personnel Rules. The grievance forms are inaccurate. Of the 35 grievants, eleven were not eligible for promotion before June 1,2010. These 11 met the minimum qualifications for the next level after June 1,2010. One grievant ~ was not eligible until July 4,2011, some 13 months later. The County is effec-
tively saying the grievance is overreaching. The Salary Resolution was applied properly. Section 411 permits step increases within a classification from step 1 after 13 pay periods of continuous, satisfactory service. Employees are eligible to
receive step increases for a period of up to four and one-half years. Step increases were not affected by the promotions freeze. Eligible employees received step increases. Section 413 governs placement of an employee at a specific step when salary ranges have been adjust or the employee receives a promotion or reclassification upward. There is nothing in Section 413 that states when such personnel actions would be appropriate or required. There was no evidence that any of the grievants were eligible for a salary
range adjustment or reclassification upward. Furthermore, the County claimed that there was no special salary upgrading for an incumbent in a permanent position temporarily assigned to a higher classification in the best interests of the County. Such action is discretionary on the part of the Director of Personnel Services. The Deputy and Interim Directors of two departments testified that the grievants were working in their current classifications. The Personnel Rules require employees to complete an application for promotion and meet the minimum qualifications for the position within the established filing period per Rule 4014. The Union did not provide evidence or explanation for the evaluations required under this section. Some employees received "needs improvement" ratings although all grievants were rated "satisfactory" at the time they applied for promotion (Rule 13100-13900). There is no evidence that any grievant was not promoted due to noncompliance. County witnesses testified that a satisfactory performance evaluation was only one of the factors considered in a promotion decision. Rules 11011-11015 are the only rules governing promotions and applicable these grievances. Promotions from one level to the next are "at the option of the department head," effective only on the approval by the Director of Personnel Services. Promotions are not based solely on time in grade and satisfactory performance. The employee must demonstrate the ability to take on the responsibilities of the next level. There must be a department need, as well. The promotion remains subject to the approval of the Director of Personnel Services. The evidence in this case shows that deputy directors ofDSS and
some of the
requests for promotion while denying others because of the promotion freeze. Only one employee was recommended for a promotion through the waiver process. The request was denied. Two other requests for waivers were denied by DCSS the Deputy Director because they were not operational1y necessary. An employee does not have the "right" to a promotion by simply performing the job well. Step increases reward such performance, Twenty of35 grievants met the minimum qualifications and had satisfactory evaluation between July 2001 and November 2009, but were not promoted. This was long before the freeze. Management has the discretion to approve or deny requests for promotion within the Personnel Rules. Discretion was applied properly here. Grievants failed to prove there was a violation of some term of the MOU or a misapplication of an ordinance, resolution or personnel rule. Union's acknowledged that promotions and special salary upgrades require the approval of the Personnel Director. Although the Union claimed that the grievants had "earned" their promotions by their skills, motivation and time in service. The rules and salary resolution, as well as the evidence, establish that no employee "earns" a promotion but can become eligible for promotion by demonstrating satisfactory service in his/her present level and skills appropriate for the next level. Though eligible, a promotion does not occur unless it meets the needs of the department and the County as a whole. There is no evidence or claim that the promotions were operationally necessary. The grievances should be denied. ARBITRATOR'S FINDINGS AND CONCLUSIONS The Arbitrator has studied the entire record including examination and cross-examination of witnesses, MOU, exhibits, and the post-hearing briefs of the parties. The Union has the burden of proving a contract violation by a preponderance of the evidence. The discussion below reflects the Arbitrator's review and analysis of the complete record, and addresses the compelling reasons for the decision. Al-
though not discussed directly in this opinion in the interest of conciseness, all arguments made by the parties in oral argument and post-hearing briefs as well as documentary evidence have been considered.
The grievances impassed before the Arbitrator cover thirty-five (35) employees of Fresno County whose promotions to a higher level were placed in abeyance when the Board of Supervisors froze all promotions due to budget constraints. The promotion freeze became effective May 25, 2010 (J3). The evidence shows that Department Head approval was not given to any of the qualifying grievants until after May 25,2010, with one exception (J6, U1). The promotion for Grievant_as approved by her
Department Head on May 17, 2010, but was denied at the next level of approval after the freeze came into effect. Of the 35 grievants, nine applications were denied by their Department Heads and five applications had not reached the Department Heads prior to the promotion freeze. The County of Fresno has created several documents which govern the promotion process and salary adjustments. Section 400 of the Salary Resolution sets out the rules for step increases, special pay adjustments and pay adjustments when an employee is promoted (J4). This document is without direct application in the present case. County Personnel Rules, Sections 4014 (Applications for Promotion), 11010-11015 (Promotion) and Rule 13 (Employee Performance Evaluations) are the operative documents with respect to the issues in this case. Section 4014 requires that applicants "must meet the stated minimum qualifications and general requirements for County employment," including promotion. This language is written in the imperative as confirmed by testimony of County witnesses Cortes, Lemos and Gilbert. Section 11010-11015 set forth the definitions of ,'promotion" within and between levels. It is undisputed that applications for promotions are processed in a hierarchal manner from a Department Head to Personnel to the County Administrative Officer (CAO). Approvals and denials are tracked at each step on a "Request For Promotion" form from first-line supervisor to Director (U2). Denial at any level stops the application. Approval of a promotion is not guaranteed because the Personnel Director must confirm that there is a budgeted position available. and that it is necessary. According to County witnesses, there have been several times when a promotion has not been granted because there was no need and/or a position was not available. Interim Director of CS Services Gilbert testified that
five factors are considered in the promotion decision. An employee is promoted when there is 1) a need, 2) good job performance, 3) funding from state and Federal government and 4) knowledge and experience in their present jobs. There was extensive testimony by witnesses Gilbert and Lemos concerning about each of the
the Department Head level within a few days or two weeks of the promotion freeze being enacted. Without going through the testimony in detail, Gilbert and Lemos testified credibly that they did not perceive the grievants working out of their current classifications' although employees worked with higher level co-workers in teams. These employees were never worked out class. At least one of the grievants was in need of performance improvement in his class before he was recommended for promotion~. In
other cases, grievants were not fully trained and so not in a position to be promoted but could apply upon fulling all training requirements. performed in a lead capacity. The Arbitrator has no doubt that the grievants testified truthfully and in good faith as to what they perceived to be their qualifications and experience for promotion to the next level job. As one example, one grievant testified that he was part of the Court Team which made it a higher level job. However, he was not able to show that the Court Team changed composition periodically and that it often ineluded employees at his CSO I level. Deputy Director Lemos testified that the only formal lead assignments were at EW ill and, as an EW II, Mr. no lead responsibilities. Everyone below EW ill _. Grievant .was not able to support his claim that he
level had direct supervisors. In the case ofMr._
the use of File Net was a regular element of his job
at the current level. His claim that he acted as a trainer was effectively rebutted. Assisting new hires is not considered a training responsibility Gob descriptions).
2 Several sets of job descriptions were entered in evidence representing a current level position and the position to which a grievant aspired to be promoted.
These examples from witnesses County management
testimony and the documentary
record are a sample that show shows the three griefreeze (UI) but were The griefor the
did not work the grievants out of classification. their promotion applications
vants who testified had submitted not approved by supervisors
before the promotion
heads until just after the freeze was put in place. above their current job levels. between different
vants were unable to show that they were performing County established (C 1), as would and EW and the job descriptions
support commonality characteristics
levels of a job class
section, as a clear reading of the EW II
show by example, establish that the higher level job requires more independence, EW
and greater scope of responsibility.
m is the only
level that provides
supervisory responsibility. but are dependent Salary Resolution
Finally, credible testimony established
are not guaranteed the
upon the four criteria identified by Deputy Director Gilbert. or Personnel Rules were violated. into evidence the Management
There is no evidence
The County submitted
Rights articles from the MOUs for Units 2,
3,4 and 12 (12). The pertinent language is identical in each of the MOUs. the "sole and exclusive right" to (3) "determine (4) select, train ...promote ...its employees," tent the procedures
In each case, the County has
and standards for employee ..,promotion", pertain to employees consis-
(13) ''make rules and regulations
with this MOU," and (14) "make all financial and budgetary decisions."
Act (MMB) is included in each MOU as an addendum. MMB, Section 3505 states that the governing body of a public agency, in the instant case, the Board of Supervisors for Fresno County, through its designated administrative officers, "shall meet and with representatives of
confer in good faith regarding wages, hours, and other conditions such recognized employee organizations
.." This section provides a definition request.
of "in good faith" that reInformation should be on
quires representatives freely exchanged
of each side meet in personal at either party's
and continue for a reasonable
period of time to endeavor to reach an agreement
matters prior to the adoption of its final budget for the year. The Board appeared to be making a financial and budgetary decision that possibly might not be subject to meet and confer requirements. The parties agreed that there was no "meet and confer" with respect to the promotion freeze. The Board of Supervisors passed a resolution creating the promotion freeze as part of its responsibilities to make all financial and budgetary decisions, an exclusive right granted under the Management Rights article in each MOU. The Union argued that the County acted in a manner inconsistent with the spirit of the Personnel Rules and Salary Resolution use of the phrase "inconsistent with the spirit" indicative of no violation of the MOU. Union must show hard evidence or substantial circumstantial evidence of a violation. A "mere assertion" that MMB was violated is insufficient to carry the burden of proof even by a preponderance of the evidence that the representatives of the Board were obligated to meet and confer over the full combination promotion freeze. The Arbitrator does not want to overreach on this point because it could be said that the parties could meet and confer. However, the point remains that the Board made its decision to stay within the established final budget for the year. Furthermore, it is noted that promotions are not authorized until signed off all steps of the promotion process as evidenced by the "Request for Promotion" form (U2, as an example). The promotion freeze took place before any of the grievants' requests had received final approval. Therefore, no harm to the grievants occurred with respect to promotions. While some harm
did result in terms of future earnings, those grievants eligible still received step increases. In conclusion, the Union failed to establish by a preponderance of the evidence that the MOU had been violated. Almost all of its arguments focused on showing that the grievants met the requirements for promotion to the next level. Even though the three grievants who testified were found to be eligible for promotion by their department heads, it is clear that there is no guarantee that a promotion request will be granted and that the Director or CAO had not approved the promotions. After a thorough review of the entire record and for all the reasons discussed above, the Arbitra-
tor denies the grievance in its entirety.
AWARD The grievance is denied in its entirely