January 2018 Labor Rep Reports
Case: A member received a NTCD (Notice to Correct Deficiencies) for working past end of shift without prior authorization. According to her sign in sheet, her end of watch should have been 4:20 pm. She sent out a murder crime alert to 300 recipients prior to leaving work. She was served the NTCD a few days after when her supervisor noticed the email he received from her was at 4:29 pm. A grievance was filed.
Outcome: The Union argued that the employee’s actual end of shift is 4:30 pm since her start time is 6:00 am. She only signed in early (5:50 am) because her supervisor has a standing rule that you sign in and begin work the moment you arrive. The union argued that per her MOU, she is allowed to stay until her end of shift and get 10 minutes overtime if they require her to start earlier than her shift. In addition the Union argued that she sent the email out prior to 4:20 pm and it took time to get to all 300 recipients. We provided proof that an email she sent to 100 people days after took 3 minutes to get to recipients. The grievance was granted at the 3rd level and the NTCD was rescinded.
Department: Public Works
Case: A member received a NTCD for not receiving authorization prior to working overtime. The member initially contacted the Union because he didn’t get paid the OT. The Union called management and advised them that he must be paid if he worked the extra hours. The Department paid him but also handed him a NTCD at the same time.
Outcome: The Union filed a grievance and argued that the employee is sent out on emergency cleanups that can’t be vacated at the end of a shift and having to work past end of shift was part of the nature of the job. In addition, the grievant attempted to contact the supervisor, but it went straight to voicemail. He then sent a text to him. The Supervisor had a new phone number that he had only provided to a few people. The grievant was not one of those people. The supervisor argued that he should have called the other Seniors to get the correct number. The union argued that the grievant is also a Senior and should have been provided the number like his peers were. He should not have to jump through hoops to get it while trying to respond to emergency cleanup. The grievance was granted at the second level and the notice was rescinded.
Department: Recreation and Parks
Case: On February 25, 2015, Arbitrator John M. Caraway issued a decision that the Department of Recreation and Parks pay Recreation Supervisors a 5.5% differential over their highest paid subordinates. The department refused to comply with the decision and maintained that they made a mistake in calculating the supervisory differential, overpaid the Recreation Supervisors, and that the supervisors reimburse the department.
As in all arbitration cases EAA requested that the Arbitrator maintain jurisdiction should there be a disagreement as to the Arbitrators award. In this particular case due to actions taken by RAP’s HR Director over an extended period of time eventually resulting in the actions described above EAA asked the Arbitrator exercise his jurisdiction over the case. The Arbitrator, Mr. John Caraway, did so and reheard the matter on October 4, 2017.
Outcome: Arbitrator Caraway ruled in favor of EAA/Recreation Supervisors and ordered the department to “restore the supervisory differential to all affected employees retroactive to the date the supervisory differential was removed.” In doing so he stated that the testimony offered by the department was “only hearsay and self-serving testimony incapable of supporting any such findings” to justify rescission of the supervisory differential. Furthermore, the Arbitrator found that the department’s argument that they applied the wrong method in calculating the differential that resulted in the overpayment “to be abject [miserable, despicable] twaddle [rubbish, nonsense]” and that “sophistry [deceptive reasoning] of it’s [departments] position in the arbitration was ample demonstration the department did not want to pay the supervisory differential and essentially its argument is that after many years of interpreting the requirements of Administrative Code Section 4.62.2, it simply did not know how it was done. This position strains credulity [gullibility].”
Department: Recreation and Parks
Case UERP 2044 & 2052: Yet another decision in favor of EAA members once again demonstrating that the Department of Recreation and Parks Aquatics Division is out of control. What will it take for the Department to realize that there is a serious problem within the Aquatics Division due to poor management and poor advice in dealing with employee issues? How much longer will the Department allow morale to continue its decline before taking action to correct the management problem?
- Recreation & Parks Aquatics (Respondent) violated section 4.860(a)(1) when it did not accommodate Ivan Rodriguez’s higher education classes by adjusting his work schedule;
- EAA did not establish, by a preponderance of the evidence that Respondent violated the ERO when it did not select Ivan Rodriguez for an AFM II assignment
- EAA did not establish, by a preponderance of the evidence, that Respondent unlawfully interrogated employees regard a vote of no confidence;
- Respondent violated section 4.860(a)(1) when it told Enrique Pena and Edwin Realegeno that their work schedules were changed because they had filed a grievance;
- Respondent violated section 4.860(a)(1) when it would not allow Enrique Pena to voluntarily adjust his schedule so he could attend the ERAC meetings once a month;
- Respondent did not violate section 4.860(a)(1) when it altered the start time for Enrique Pena;
- Respondent violated section 4.860(a)(1) when it assigned Wendy Escobar to work at a closed facility and then when it transferred her to Cabrillo beach;
- Respondent violated section 4.860(a)(1) when it refused to accommodate Edwin Realegeno’s request to not work on Saturday, May 27, 2017 and when it issued a Notice to Correct Deficiencies and then a counseling memorandum for alleged failure to comply with the improperly promulgated call in procedures;
- Respondent violated section 4.860(a)(1) when it changed the hours of Nivar Rivera so that he was working at a facility that was not open to the public; and,
- Respondent violated section 4.860(a)(3) when it promulgated new rules regarding call in procedures which threatened to impose discipline for non-compliance without first meeting and conferring with EAA.
In addition to the usual and appropriate posting orders, a number of actions are appropriate to restore employees to the positions they were in prior to the unlawful retaliation. For example, Edwin Realegeno should be restored to the schedule he had before the unlawful action, unless he no longer requests such a change. Circumstances may have changed and merely ordering a return to the status quo might not be productive or desirable for some employees or EAA. For example, pursuant to information submitted by Respondent, in December 2017, Wendy Escobar is serving in an AFM II assignment at Peck, so an order rescinding her transfer to Cabrillo Beach would be inappropriate. Although Edwin Realegeno is still assigned to Hansen Dam, the staffing levels are reduced and that might impact scheduling. Ivan Rodriguez is assigned to Cabrillo, further away from the location of his Wednesday class and he may require more time to get there on time. Thus, understanding that the parties may need to reach accord on a number of issues, it is recommended that the order require that Respondent;
- Cease and Desist from interfering, restraining, or discriminating against employees because of the exercise of rights guaranteed by the Employee Relations Ordinance by changing schedules and work locations;
- Where appropriate, restore the work schedules of Edwin Realegeno and Nivar Rivera to what they were before the changes in August/September 2016.
- If requested and still appropriate given her paygrade level, reassign Wendy Escobar to LACES;
- Cease and desist from interfering with or preventing Ivan Rodriguez from attending educational classes to complete his program at La Verne University;
- Cease and desist from preventing Enrique Pena’s participation in ERAC; and
- Cease and desist from enforcing any new rules set forth in the Call in Procedures memorandum issued on August 21, 2016, until the parties meet and confer as required by law.
- Post the appropriate order at all locations where AFMs work and at All City Aquatics.