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HomeMy WebLinkAbout03.h. Adopt arbitrator's recommendation in the Engineering Assistant I/II grievance matterCentral Contra Costa Sanitary District ' BOARD OF DIRECTORS POSITION PAPER Board Meeting Date: November 17, 2011 subject: ADOPT THE ARBITRATOR'S RECOMMENDATION IN THE ENGINEERING ASSISTANT 1 /II GRIEVANCE MATTER Submitted By Initiating Dept. /Div.: Christopher Ko, Human Resources Administration Department/ Manager Human Resources REVIEWED AND RECOMMENDED FOR BOARD ACTION: �e l C. Ko R/Mu! aves A. Farrell V James elly, General tanager ISSUE: In accordance with the current Memorandum of Understanding (MOU) between the District and the CCCSD Employees' Association, Public Employees' Union, Local One, Article III, Section 2.5, the Board of Directors may adopt, reject, or modify the recommendation of an appointed neutral third party (arbitrator) in grievance matters. RECOMMENDATION: Adopt the arbitrator's recommendation that the District did not violate the Memorandum of Understanding when it concluded that the employees did not meet the minimum qualifications for the Engineering Assistant 1 /II position and to deny the grievance. FINANCIAL IMPACTS: None. ALTERNATIVES /CONSIDERATIONS: Reject or modify the arbitrator's recommendation. BACKGROUND: In September 2010, the Board directed staff to secure the services of an arbitrator in the Step Four grievance. Local One filed a grievance against the District for denying two employees who did not meet the minimum qualifications for the Engineering Assistant 1 /II recruitment to proceed in the examination process. Arbitrator Frank Silver heard the grievance on February 22, 2011, and issued his decision on November 4, 2011. Mr. Silver affirmed that Article III, Section 10.1 of the MOU stated that employees "must meet the minimum qualifications of the position to apply." The evidence shows that the screening committee fairly evaluated the applications, and that it reasonably concluded that the two employees did not meet the minimum qualifications for Engineering Assistant 1 /II. Furthermore, he found that there is nothing in the MOU language which provides special consideration for internal candidates with regard to the determination of minimum qualifications or proceeding to the oral board. H: \Grievances\2010 \Engineering Assistant 1- 11\Arbitration \Position Paper Adopt Arbitration (Final) 11- 17- 11.doc 3.h. POSITION PAPER Board Meeting Date: November 17, 2011 Subject ADOPT THE ARBITRATOR'S RECOMMENDATION IN THE ENGINEERING ASSISTANT 1 /II GRIEVANCE MATTER Therefore, Mr. Silver is recommending that the grievance be denied. The advisory opinion is attached. RECOMMENDED BOARD ACTION: Adopt the arbitrator's recommendation that the District did not violate the Memorandum of Understanding when it concluded that the employees did not meet the minimum qualifications for the Engineering Assistant 1 /II position and to deny the grievance. H: \Grievances\2010 \Engineering Assistant 1- I1Wrbitration \Position Paper Adopt Arbitration (Final) 11- 17- 11.doc IN ARBITRATION PROCEEDINGS PURSUANT TO AGREEMENT BETWEEN THE PARTIES In the Matter of a Controversy ) Between ) CENTRAL CONTRA COSTA SANITARY ) DISTRICT, ) Employer, Im PUBLIC EMPLOYEES UNION, LOCAL ONE, Union. RE: Engineering Assistant I /II grievance ADVISORY DECISION FRANK SILVER, Arbitrator November 4, 2011 This dispute arises under the Memorandum of Understanding between the above -named parties, pursuant to which this Arbitrator was selected to hear the evidence and to determine the issues. A hearing was conducted on February 22, 2011 in Concord, California, during which the parties had the opportunity to examine and cross - examine witnesses and to present relevant evidence. The representatives for both parties argued the matter orally at the conclusion of the hearing, and the matter was submitted for decision. 1 APPEARANCES: On behalf of the Employer: W. Daniel Clinton, Handson Bridgett LLP, San Francisco, California On behalf of the Union: Scott Brown, Senior Business Agent, Public Employees Union, Local One ISSUES 1. Did the District violate the Memorandum of Understanding when it conlcuded that applicants Karen Huff and Maralee Davi did not meet the minimum qualifications for the position that was posted, see Joint Exhibit 2? 2. Assuming that it is found that the applicants met the minimum qualifications for the position, did the District violate the MOU by not allowing those internal candidates to proceed to the Oral Board? PERTINENT PROVISIONS OF THE MEMORANDUM OF UNDERSTANDING 10.1 Open/Promotional Opportunities: When an opening occurs for a position which is not included in the Personnel Advancement Policy, employees may compete on an open/promotional basis. Employees must meet the minimum qualifications of the open position to apply. At the conclusion of the recruitment and testing process, an eligibility list of candidates will be prepared. A District manager or his/her designated representative will interview and select from the candidates on the eligibility list in the following manner: the four highest ranking regular District employees shall be interviewed and any outside candidates who place among the top four candidates on the eligibility list shall be interviewed. The top four (4) internal applicants shall be invited to final selection interview. No external applicant shll be interviewed for final selection unless he /she scores in the top four of all applicants. FACTS A. Engineering Assistant I/II job posting, Grievants' applications. Karen Huff is an administrative technician with more than twenty years of services with the District. As an administrative technician, she operates and maintains maintenance software records for work performed on sewage processing equipment, troubleshooting maintenance software issues, P) and preparing monthly statistical reports regarding maintenance workload and labor hours. Maralee Davi is a utility worker with 18 years of service with the District. She performs maintenance work of various types, including work on tanks and the ultra- violet system. Her work requires the operation of power tools, hand tools, and heavy equipment. In March 2010, Huff and Davi were among the applicants for an Engineering Assistant I/II position. According to the job posting, the principal assignment of Engineering Assistants involves technical and clerical work at a public permit and information counter, processing customer applications for sanitary sewer work, plan checking, and permit issuance. The posting identifies the "ideal candidate" as possessing excellent customer service and problem - solving skills, experience with various computer programs, including Microsoft Word and Excel, experience reading building plans and maps, and knowledge of the building permit process. The recruitment standards were stated to be a combination of the following: Experience: I: Two years of experience in engineering, drafting, inspection, planning, right -of- way or other property - related work. II: Eighteen months of experience comparable to that of an Engineering Assistant I in the District. Education: Equivalent to the completion of the twelfth grade, supplemented by courses in mathematics, algebra, geometry, trigonometry, engineering, surveying, and drafting. (Jt. Ex. 2.) On her application for the Engineering Assistant position, Huff listed her education as including an associate's degree from Chabot Jr. College, majoring in medical assisting, plus 40 quarter hours at Cal State East Bay, with no indication of the subject matter of the courses. In response to the application's supplemental questionnaire, she noted that she had worked in an admitting office in a hospital setting, but that she had no experience in the following designated areas: permit issuance, fee collection, construction, plan review, inspection, right -of -way. In listing other experience, she stated: "Excellent communication and writing skills. Have strong mathematical skills up to college level calculus. Have worked at the Collection System and have experience using street maps and know about the different types of pipes that are within the District. Have used mapping system at the District to locate specific manholes and plant equipment." (Jt. Ex. 4.) On her application, Davi listed her education as a high school diploma, five units at Solono Jr. College taking "Introduction to Waste Water," plus courses at Los Medanos College in business management and welding theory and practice. On the supplemental questionnaire, she noted customer service experience in her current job as a utility worker, responding to maintenance requests from other departments. She also noted temporary work as an Engineering Assistant in 2005 performing some of the basic functions at the permit counter, greeting customers, looking up sewer, permit and easement information, and reviewing site plans.' She indicated that she had experience in fee collection and construction, but no experience in permit issuance, plan review, inspection, or right -of -way. With regard to training and education, she listed a number of TPC courses, such as blueprint reading, schematics and symbols. These are self -study courses from training manuals available at the District. She also provided training certificates in Excel and Microsoft Word. She listed courses from Los Medanos College as including basics of supervision and other business - related subjects, but no courses in mathematics. (A. Ex. 5.) B. Open/Promotional screening and examination procedure. The Engineering Assistant I/II position was posted on an open/promotional basis, meaning ' Davi attached a memo from Engineering Department supervisor Kurt Darner reviewing her provisional assignment as an Engineering Assistant I, which lasted approximately six weeks in 2004. Darner stated that Davi was instructed on some of the basic functions ofthe permit counter, and that she performed well in customer service, showing initiative, and developing a sufficient understanding of the District's mapping system to help customers locate sewers, easements and laterals. 4 that it was open to outside applicants as well as District employees applying for promotion. As noted in the job posting, the first step in processing applications would be a screening committee: "A screening committee will evaluate the qualifications of each candidate who has met the minimum requirements for this position. The highest - ranking candidates will be invited to participate in the examination process. Applicants meeting the minium qualifications are not guaranteed advancement to the examination, and the decision ofthe screening committee is final." (Jt. Ex. 2.) According to Human Resources Director Cathryn Freitas, this language describing the screening committee has been in every promotional posting at the District since 1991, which was the year in which MOU section 10.1 was modified to its current language. She further described the procedure as follows: After applications are screened to determine minimum qualifications, an examination, which may consist of an oral board with no written component, is scheduled. The oral board is made up three individuals from outside agencies who rate the applicants and establish an eligibility list. The final selection interview is conducted by hiring department managers, and under section 10. 1, it is limited to the four highest ranking District employees plus any outside candidates who place among the top four on the eligibility list. With respect to the 2010 Engineering Assistant I/II posting, the District received an unprecedented number of outside applicants, many of whom were highly qualified and had worked for other public agencies. Previous postings for this job had generated little interest, but in 2010 the District received 199 applications. The applications were reviewed initially by human resources analyst Christopher Ko, who prepared a spreadsheet for use by the screening committee in evaluating the applications. In the spreadsheet, he listed 29 individuals, who, based on their applications, appeared to be the most qualified, and 40 additional individuals who, in his view, met the minimum qualifications. He summarized the education, training, and experience of each of these 5 candidates. Although he did not believe, based on his review of the applications, that any of the three internal candidates, including Huff and Davi, met the minimum qualifications, he also summarized their education, training and experience on the spreadsheet. The screening committee consisted of Freitas, engineering department supervisor Kurt Darner, and principal engineer Jarred Miyamoto - Mills. They were provided with the actual applications received by the District along with Ko's spreadsheet. According to Freitas, the committee went through the top 40 or 45 applications, and also reviewed the applications from Huff and Davi (Tr. 124). They concluded that Huff and Davi were not competitive with the most qualified applicants, and that they did not meet the minimum qualifications for the position. Ultimately, eleven of the most qualified applicants were invited to attend the next step - the oral board. Of those, nine met with the oral board, and those nine were included in the eligibility list and the top four were eligible for the departmental interview. There was a previous promotional process for Engineering Assistant in 2006, and both Huff and Davi applied for the position at the time, were invited to participate in the oral board and were listed on the resulting eligibility list. For that recruitment, there were only 22 applicants, and according to Freitas, 14 were considered by the screening committee not to be qualified, including Huff and Davi. However, there were only eight qualified applicants, and several stated prior to the oral board that they were no longer interested in the job. Ultimately, only three external candidates were scheduled for the oral board, and Freitas made the decision to invite Huff and Davi to the oral board, despite the determination by the screening committee that they were not qualified. Freitas testified that she felt it would be good experience for them to go through and oral board and that it would do no harm. It was not communicated to Huff and Davi that they were considered not to meet R the minimum qualifications, and they were included on the eligibility list. POSITIONS OF THE PARTIES The Union The Union argues that the two Grievants met the minimum qualifications of the posted position, and that under section 10. 1, they were entitled to compete in the oral board process and go to the final departmental interview. The lack of weight given to their non - collegiate education was egregious in an industry in which non - collegiate education is the norm. Although Ms. Freitas stated that given the volume of applications, they wouldn't have been among the most qualified, section 10.1 doesn't say they have be the most qualified. In 1991 the Union bargained to give internal candidates a leg up over the more restrictive rule of four, since under the new language employees would only be required to meet the minimum qualifications in order to compete. The District did not consider the Grievants' unique skill sets, or evaluate their qualifications in a holistic manner, when it disqualified them through a paper screening process. In addition, they had a reasonable expectation that they would be allowed to compete, since in 2006 they went to the oral board and were placed on the eligibility list. They were not told that they did not qualify for the position. This is a case of the goal post being moved. They District changed its interpretation of section 10.1 simply because it got a high volume of applications. The District is bound by the MOU, and must be directed to cease and desist from changing the rules, so that employees can rely on standards that are open, plain, and clearly delineated. For these reasons, the Union argues that the grievance should be granted. Union's position The District The District argues that in a decision by this arbitrator in 2007, the premise was rejected that an internal candidate who met the minimum qualifications would be selected. The Union has the burden of proof to show that these Grievants met the minimum qualifications, and it asks that their qualifications should be judged under a "holistic approach." The contract does not say that. The term "minimum qualifications" has meaning, and job requirements were set with employee and Union input in 2008, after the previous recruitment. The Grievants have been honest about their qualifications. Huff stated on her application that she had no experience in the areas relevant to the engineering assistant position. Although there was an attempt to qualify that response at the hearing, the District was entitled to rely on the application. She essentially admitted she did not meet the minimum qualifications. She has had some mathematics courses, but she did not identify any courses in areas identified on the posting: algebra, trigonometry, engineering, surveying and drafting. Davi admitted in her testimony that she did not meet the experience qualifications, such as engineering, drafting, etc. Although she took some self - administered TPC courses in blueprint reading and schematics in March 2010 as part of submitting the application, this is not something she did to truly prepare herself for promotion. Also, her temporary assignment on the permit counter did not come close to satisfying the two year requirement. It's unfortunate that the Grievants' expectations were raised by their experience in 2006. But the District has credibly explained why that happened. There were only three external candidates, and the Ms. Freitas allowed them to have the experience of being interviewed. Also the job description changed after 2006, clarifying the experience component. Employer's position The District did not move the goal post. For 20 years it has told candidates they must meet the minimum qualifications, that there will be a screening committee, and that meeting the minimum qualifications does not mean an applicant will get to the oral board. The Union has never taken issue with that. Now it wants to contend that by meeting the minimum qualifications, an employee gets to an oral board. However, the eligibility list is created by the oral board, and that is the process that has been consistently described by the job postings. The District contends that for the above reasons, the grievance should be denied. DISCUSSION The first issue submitted by the parties is whether the District violated the MOU when it determined that the two Grievants, Karen Huff and Maralee Davi, did not meet the minimum qualifications for the posted Engineering Assistant I/1I position. If it is found that they did meet the minimum qualifications, the second issue would be whether they should have been allowed to proceed to the oral board. The contract language does not directly address either of these issues. Section 10.1 states that employees "must meet the minimum qualifications of the open position to apply," but it does not set any standards nor establish a procedure for making the determination of whether minimum qualifications have been met. Similarly, it states that at the conclusion of the "recruitment and testing process," and eligibility list will be prepared. Unless there is a written test, the oral board itself is the "testing process," and the contract language does not state directly whether or not everyone who meets the minimum qualifications is entitled to proceed to the oral board. After an eligibility list is prepared, internal applicants on the list are given special consideration in that they are entitled to be interviewed by the hiring department regardless of whether they have placed L among the top four on the eligibility list, but there is nothing in the contract language which provides special consideration for internal candidates with regard to the determination of minimum qualifications or proceeding to the oral board. Addressing the issue of minimum qualifications, the evidence shows that since at least 1991, when section 10.1 was modified in negotiations, postings for open/promotional positions have stated that a screening committee would evaluate the qualifications of candidates who have met the minium qualifications. The District's practice has been that a human resources analyst does an initial screening of the applications to determine minimum qualifications, and that the applications are provided to the screening committee to do its own evaluation. The screening process of for the Engineering Assistant I/II position was unusual, given fact that there were 199 applications. Human resources analyst Christopher Ko prepared a spreadsheet summarizing the qualifications of the 29 applicants whom he believed to be the most qualified and 40 applicants whom he believed met the minimum qualifications. Although he did not believe that either Ms. Huff or Ms. Davi met the minimum qualifications, he summarized their education and experience which they provided in their applications. Ko's spreadsheet, along with the actual applications, were provided to the screening committee. The screening committee consisted of HR director Cathryn Freitas, principal engineer Jarred Miyamoto - Mills, and engineering department supervisor Kurt Darner. It was the screening committee's determination, based on itsr review ofthe applications, that neither Ms. Huff nor Ms. Davi met the minimum qualifications for the posted position. These individuals possess expertise in the area of the technical requirements for the position, and it would not ordinarily be the function of an arbitrator to review that determination, especially where, as here, 10 the contract language provides no standards, such as the weighting of seniority against technical knowledge, by which to judge minimum qualifications. Nevertheless, it is apparent from the face of the applications that neither Ms. Huff nor Ms. Davi had more than minimal experience in "engineering, drafting, inspection, planning, right -of -way or other property- related work," nor supplemental courses in "mathematics, algebra, geometry, trigonometry, engineering, surveying, and drafting." It is of course relevant that Kurt Darner, who had supervised Ms. Davi when she worked for six weeks on the permit counter in 2004 and had written a memo favorably evaluating her work during that time, was a member of the screening committee in 2010. The Union argues that the District has "moved the goal posts," in that both Ms. Huff and Ms. Davi applied for an Engineering Assistant position in 2006, went through an oral board interview and were placed on the eligibility list. Ms. Freitas has testified that this was because there were only three qualified candidates available to be interviewed by the oral board, and that she arranged for Ms. Huff and Ms. Davi to be interviewed although they did not meet the minimum qualifications, thinking it would be good experience for them and no harm would be done. Although Ms. Huff and Ms. Davi understandably felt that this experience meant that they met the minimum qualifications, Ms. Freitas' testimony is accepted that this was not the intent. The fact is that the situation was much different in 2010 than it was in 2006, and realistically Ms. Huff and Ms. Davi were not competitive among numerous applicants with extensive technical education and public sector experience in permit issuance, plan review, inspection and other related areas. This was not a case of the District moving the goal posts, but rather a situation in which there were substantially changed circumstances. The evidence shows that the screening committee fairly evaluated the applications, and that it reasonably concluded that Ms. Huff and Ms. Davi did not meet 11 the minimum qualifications for Engineering Assistant I/II. In view of this conclusion, it is not necessary to consider the issue of whether they should have been permitted to proceed to the oral board. AWARD The District did not violate the Memorandum of Understanding when it concluded that applicants Karen Huff and Maralee Davi did not meet the minimum qualifications for the posted position. The grievance is denied. Dated: November 4, 2011 Frank Silver, Arbitrator 12