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Title: Bay Area Rapid Transit District and Bart Police Officers Association, Local 1008 
Date: January 20, 1993 
Arbitrator: Luella E. Nelson 
Citation: 1993 NAC 104

 

In the matter of arbitration between:

BART POLICE OFFICERS ASSOCIATION, SEIU, LOCAL 1008

                            and

BAY AREA RAPID TRANSIT DISTRICT

Upgrade of Bargaining Unit Employee to

Non-Repre­sented Position

Neal Hadley, Grievant

ARB CASE NO. 664-02

C.S.M.C.S. Case No. 91 1 633

LUELLA E. NELSON, Arbitrator

 

                                                                                            


            This Arbitration arises pursuant to Agreement between BART POLICE OFFICERS ASSOCIATION, SEIU, LOCAL 1008 ("Union"), and BAY AREA RAPID TRANSIT DISTRICT ("District"), under which LUELLA E. NELSON was selected to serve as Arbitrator and under which her Award shall be final and binding upon the parties.

            Hearing was held on November 4, 1992, in Oakland, California.  The parties had the opportunity to examine and cross-examine witnesses, introduce relevant exhibits, and argue the issues in dispute.  Both parties filed post-hearing briefs on or about December 22, 1993.

APPEARANCES:

            On behalf of the Union:

                        Donald C. Carroll, Esquire, Carroll & Scully, Inc., 300 Montgomery, Suite 735, San Francisco, California 94104. 

            On behalf of the District:

                        Booker Jackson, Esquire, Bay Area Rapid Transit District, 800 Madison Street, Oakland, California 94604‑2688.

ISSUE

            The parties proposed separate statements of the issues and stipulated that the Arbitrator is to formulate the issue or issues to be decided upon a review of the proposed issues, the Agreement, and the record as a whole.  The Union would formulate the issues as follows:

            1.         Whether the District violated the Agreement when it made a clerk from the bargaining unit do work outside the bargaining unit while later allowing that clerk's work to be done by two people from a temporary employment agency?  If so, what is the appropriate remedy?

            2.         If there was no violation of the agreement, does the District's use of a bargaining unit employee in a heretofore non‑bargaining unit position constitute a determination by the District that it needs this non‑bargaining unit position as an additional bargaining unit position thus requiring further bargaining with the Union under Section 77 of the Agreement?

The District would formulate the issues as follows:

            1.         Whether this Grievance is properly before the Arbitrator after the District complied with the Association's requested relief of returning the subject clerk to performing her bargaining unit duties only.

            2.         Whether the Grievance before the Arbitrator is subject to Agreement Section 13.0, Beneficial Practices; and if so, is it a matter for advisory arbitration only?

            3.         Whether the District violated the BPOA Agreement, pursuant to the Grievance dated February 6, 1992, when it temporarily upgraded a bargaining unit clerk to perform some of the Police Chief's secretary's duties.  If so, what shall be the remedy?

                        A.        Whether the BPOA Agreement prohibits clerks from being upgraded to perform non-bargaining unit duties on a temporary basis.  If so, what shall be the remedy?

                        B.         Whether the District complied with Agreement Section 14.A (Contracting) by upgrading a Police Department clerk to perform departmental secretarial duties within the clerk's classification.  If so, what shall be the remedy?

The Arbitrator formulates the issues as follows:

            1.         Is the grievance arbitrable?

                        a.         Does the parties' settlement of the October 1, 1991, grievance make non-arbitrable:

                                    i.          The District's initial temporary assignment of a unit employee to perform duties ordinarily performed by a non-unit employ­ee; and/or

                                    ii.          The District's assignment of unit work to temporary employ­ees at a time when a unit employee was temporarily assigned to duties ordinarily performed by a non-unit employee?

                        b.         If the parties' settlement of the October 1, 1991, grievance does not make non-arbitrable one or both of the above issues, is the grievance moot?

            2.         Did the District violate the Agreement when it assigned unit work to temporary employees at a time when a unit employee was temporarily assigned to duties ordinarily performed by a non-unit employee?  If so, what is the appropriate remedy?

            3.         Did the District determine that the needs of the Police Department required the creation of an additional classification related to the bargaining unit?  If so, is the District required to engage in further bargaining with the Union under Section 77 of the Agreement?

RELEVANT SECTIONS OF AGREEMENT

                1.             DEFINITIONS

                For the purpose of this Agreement:...

B.            The term "Police Unit" means the unit of sworn and non-sworn employees. ....

D.            The terms "Employee" and/or "Employees" mean any person and/or all persons in the Police Unit described above.

                10.          GRIEVANCE PROCEDURE...

                Step 1

                                Whenever possible grievances will be promptly resolved by discussion between the em­ployee and his/her supervisor.  If discussion does not result in a satisfactory resolution, the employee may present his/her grievance in writing, to his/her immediate supervisor within twelve (12) calendar days of the occurrence of the dispute or within twelve (12) calendar days of the date that the Union should have been aware of the occurrence of the event. ....

                Step 2

                                If the grievance is not resolved within twelve (12) calendar days of the presentation under Step 1, the grievance may be submitted in writing to the Chief of Police or his/her designee. ....

                Step 3

                                If the grievance cannot be resolved under Step 2, the Union may within twelve (12) calendar days of the action by the Chief of Police, arrange for the convening of a meeting between representatives of the Employee Relations and the Union to attempt to resolve the grievance on a mutually acceptable basis. ....

                Step 4

                                Should the matter remain unresolved in Step 3 above, either party may, within twelve (12) calendar days of the determination, request arbitration of the dispute. .... 

                13.          BENEFICIAL PRACTICES

                                The District agrees that as a result of signing of this Agreement, rules or regulations or practices affecting employees beneficially will not be changed without mutual agreement, except as follows:

                A.            In the event of a dispute concerning a beneficial practice not otherwise covered in this Agreement, the matter may be submitted to Advisory Arbitration by either party.  ... [T]he arbitrator thus selected shall only have authority to render an Advisory Opinion to the General Manager or his/her designated representative in his/her absence.....  

                14.          CONTRACTING WORK

                A.            It is the intent of the parties that work connected with the operation of the Police Services Department be performed by department personnel....

 

                63.    SPECIAL ASSIGNMENTS AND NON-PATROL ASSIGNMENTS

 The Chief of Police retains the authority to make "non-patrol assignments" in any manner deemed advisable for the best interest of the department provided the employee possesses the minimum qualifications for the assignment.....

             64.          ASSIGNMENTS AND TRANSFERS

                                Assignments or transfers shall not be made in an arbitrary or capricious manner, or to show or to carry out favoritism.

                72.          SENIORITY...

                D.            Jobs Outside Bargaining Unit

                                Employees who accept jobs outside the bargaining unit or are promoted to supervisory jobs outside the bargaining unit shall not be caused to lose their seniority.  Such employees shall not accumulate any seniority while working outside the bargaining unit.  If such employees are returned to their former bargaining unit jobs within the time specified herein they shall regain their seniority earned and again accumulate seniority. ... If such employee is out of the bargaining unit as provided herein for a period in excess of twelve (12) months, such Right of Return shall be forfeited.....

                77.          JOB CLASSIFICATIONS - New Classifications

                                In the event the District determines, subsequent to signing of this Agreement, that the needs of the department require the creation of additional classification(s) related to the bargaining unit, the District agrees to discuss with the Union the functions to be performed, the qualifications required, appropriate lines of progression, and to prepare appropriate job descriptions.  The salaries of the proposed additional classification(s) shall be subject to negotiations.....

FACTS

            This is the second grievance over the assignment of Police Services Clerk Marie Ramos as a tempo­rary replace­ment for Janie Porter, Secretary to Chief Harold Taylor of BART Police.  Ramos is a member of the bargaining unit; Porter's position is confidential and non-represented.

            The bargaining unit includes sworn Police Services Officers and Senior Police Services Officers, and Police Cadets, who are in training to become Police Services Officers.  It also includes non-sworn Revenue Protection Guards, Police Services Clerks, Police Services Assistants, Senior Police Services Assistants, Police Dispatchers, and Administrative Analysts.

THE TEMPORARY ASSIGNMENT TO PORTER'S DUTIES

            Porter expected to be off work for minor surgery between four and six weeks, but experienced complications.  Ramos filled in for her from October 2, 1991 until May 1, 1992, when she returned to work.  Ramos then returned to her normal duties.

            On two prior occasions, the District had used temporary personnel from outside agencies ("temps") to replace Porter.  The record is silent regarding the identity of Porter's replacements, if any, during other absences.  At the time the District was planning for Porter's surgery, budgetary problems had already induced the General Manager to bar use of District funds for overtime and temps.  The District therefore decided to use its own staff to perform Porter's non-confidential duties (typing, answering phones, and filing).  Ramos' immediate supervisor, Sergeant Brian Newlon, selected Ramos to replace Porter because she could take some of her duties with her.  Ramos continued to perform her regular duties when she could.  She estimated that she spent two to three hours per day on her normal duties.  Taylor testified that he dealt with confidential matters without involving Ramos during Porter's absence.

THE FIRST GRIEVANCE

            The Union filed a grievance on October 1 protesting Ramos' reassignment on the basis that "This position is a NON-UNION position and can not be filled by union members.  It is non-bargaining unit work."  The grievance sought Ramos' removal from the position and the use of temps, if necessary.  The District informed the Union of its budgetary problems and lack of funds for temps.  On October 8, the parties agreed on the following resolution of the grievance:

The [Union] can agree in a non-precedent setting basis to allow a BPOA union clerk to fill in temporarily for the Chief's Secretary (a non-union position) while she is absence [sic] for minor surgery.

It is further agreed that the clerk will receive either bottom step secretary pay or 5% per-cent above her current rate of pay, which ever is greater while assuming chief secretarial duties.

The clerk will also be given the option of a 9 hour day with every other friday off, or remaining on her current 8 hour day shift.

Ramos selected a nine-hour day.  However, other clerks complained about her nine-hour shift.  After two weeks, the District put her on an eight-hour day.  No grievance was filed over this change.

LATER USE OF TEMPORARY EMPLOYEES AT THE PLAZA ENTRANCE

            In October or early November 1991, two Revenue Protection Guards went on disability leave.  The Treasury Department asked the Police Department to help staff the Cash Handling Building.  The Police Department reassigned two employees.  Both were police officers working light duty in the Plaza entrance to the Lake Merritt Administra­tion ("LMA") Building due to injuries.  In return, the Treasury Department provided funds to hire temps at the Plaza in their stead.[1]  The temps worked until late February, when one of the disabled Revenue Protection Guards returned to work.

THE GRIEVANCE AT HAND

            The Union filed a grievance on February 6, 1992.  The grievance recounted the prior settlement.  It pointed out that the District was using two temps in the Police Department.  It sought Ramos' return to a unit position and the use of temps to replace Porter.  The District's response at Steps 1 and 2 was as follows:

            The two temporary clerks (receptionists) presently working in the LMA Plaza will continue and the present arrangement of a police clerk handling part of the Chief's secretarial needs will continue.

The Union disputed this resolution at both steps.  The Union has since filed a third grievance over the use of three unit clerks to fill in for Porter during a three-week vacation.  That grievance is not before the Arbitrator.  However, the parties will allow that grievance to be resolved by the results of this proceeding.

TEMPORARY ASSIGNMENT OF POLICE CADETS TO GUARD DUTIES

            The District contracts out certain guard duties to private security guard agencies.  Employees of those agencies ("contract guards") have guarded holes in fences around tracks, supplemented security during labor disputes, and may have provided extra security at special ticket sales for high-volume events such as the World Series.

            Revenue Protection Guards do not normally worked a fixed post to protect a facility.  Rather, they provide security for the Cash Handling Building and for Treasury Department personnel, who collect revenue from automatic fare collection equipment.  They have worked fixed posts in providing additional security for special ticket sales for high-volume events.  They once guarded building entrances during a labor dispute.

            Police Cadets' duties include learning how to become Police Officers and doing related duties as assigned within the Police Department.  Their day-to-day duties ordinarily do not include guarding a fixed post.  Association President Glenn Nunes testified that he was aware that Police Cadets were used to guard fixed posts for three periods--during the 1991 Middle East Crisis, for the Cypress Corridor Project, and at the Richmond BART Station.  On each occasion, the parties agreed on the rate of pay for the affected Police Cadets.  Police Cadets normally earned between $6.57 and $8.4789 per hour until July 1, 1991, and between $6.7671 and $8.7332 per hour thereafter.

            On February 12, 1991, during the 1991 Middle East Crisis, the Union filed a grievance alleging that the parties

            ... agreed to pay Cadets 12.59 an hour while on fixed post.  This was agreed to on 1-17-91.  Their pay checks on 1-24-91 and 2-7-91 did not have this rate of pay.  Section 11 of Cadet Sideletter of Agreement allows 5 days holdback of pay.  Shortages shall be corrected within 3 accounting days.

The parties resolved the grievance by reaffirming the agreement that "cadets working at locations that we normally assign to contract guards should be pd $12.59 per hr."  Newlon testified that $12.59 corresponded to the rate of pay for contract guards.  Nunes initially testified that the rate of pay corresponded to that for contract guards.  He later testified that he thought the District paid less than that to contract guards.  He believes the figure of $12.59 was selected because it corresponds to the pay for a Police Services Assistant, Step 3, in the Agreement.

            Beginning in April 1991, the District temporarily assigned Police Cadets to provide security at three parking lots.  In conjunction with the demolition of the Cypress Freeway, the District and the California Department of Transportation ("CalTrans") agreed to open three additional parking lots from which drivers could carpool.  The District owned one of the three lots; the other two belonged to CalTrans.  The District agreed to provide security for all three lots.  It arranged for a local community group to provide guards on a contract basis.  Until the group could get its bond, the District used Police Cadets for this purpose.  As reflected in the Position Control Forms prepared by the District for this reassignment, the District upgraded Cadets to $13.0960 per hour ($13.4888 after July 1).  That rate of pay corresponds to the pay for a Senior Police Services Assistant, Step 1, in the Agreement.

            Beginning in June 1991, the District assigned Police Cadets to the Richmond Station.  The Position Control Forms state that the cadets were "being utilized to augment patrol officers at the station."  While so engaged, they were paid at $12.59 per hour.

POSITION OF THE UNION

            Working employees outside the bargaining unit without the Union's consent violates the recognition clause of the Agreement.  The District ignored the Union on this serious matter.  The District did not bargain or ask to bargain.  It does not matter whether Ramos worked outside the unit voluntarily.  The Agreement does not countenance direct bargaining with an employee.

            The perniciousness to the bargaining relationship and workplace peace is manifested here.  The parties had to deal with the remaining clerks' unhappiness over the opportunity offered to Ramos and her nine-hour schedule.  Ramos' performance of unit work in the Chief's office may also have contributed to ill feeling among other unit employees.

            The Union's resolution of the first grievance was on a non-precedent setting basis and was a product of unique circumstances.  The Union cannot be faulted for trying to meet the Department's needs.  However, the situation changed in February when the Department secured temps to do unit work while Ramos remained in the Chief's office.  The basic rationale for the resolution of the first grievance no longer existed.  It does not matter where the District found the money for these temps.  The Union rightfully demanded Ramos' return to the unit.  The District instead capitalized on the Union's earlier generosity.

            The District violated the recognition clause by refusing to return Ramos to the unit.  In addition, by leaving temps doing unit work while Ramos did non-unit work, the District denied the other unit employees fair and just treatment under the Grievance Procedure.  It violated the Entire Provision language by deciding for itself that workers could continue to work outside the unit without Union consent.

            The parties have already bargained over such subjects as subcontracting.  While this case is not a subcontracting case, the parties have evidenced their respect for the boundary lines of the unit.  The District must get and keep the Union's consent for anything else.

            If the District feels it needs additional classifications related to the unit, Section 77 requires it to discuss the matter with the Union.  It did not do that originally here.  If the Arbitrator does not sustain the grievance, she should find that the District now has at least the duties set forth in Section 77.

            The grievance was not resolved when Ramos returned to the unit.  The grievance involves a question of contract interpretation which Ramos' return has not resolved.  The case is not moot and does not involve an advisory opinion.  The latest grievance shows that the District thinks it has a unilateral right to work unit employees outside the unit.  Also, the parties have agreed to let this arbitration dictate what may happen to the latest grievance.

            Section 72.D is not applicable.  The Union has no objection to employees leaving the unit to accept non-union jobs.  That was not the case here.  Ramos did not consider herself as leaving the unit.  Indeed, she took unit work with her.  That is why Newlon chose her.  No evidence exists that she did not continue to accumulate seniority while in the Chief's office or that she was told she would lose all seniority if she did not return within 12 months.

            The Union has not allowed the District to use other unit employees to do non-unit work.  Guard work performed by cadets is unit work.  The Union has grieved each attempt to use outside guard services to guard District property.  It has not grieved the use of outside guard services for the property of others, such as CalTrans.  The Arbitrator should uphold the grievance and find that the District may not work  unit employees outside the unit without the Union's consent.

POSITION OF DISTRICT

            The grievance is not arbitrable because its subject matter was previously settled by the resolution of the first grievance.  That resolution did not limit the time of Ramos' temporary assignment to fill in for Porter.  It merely specified her rate of pay and gave her the option of a nine-hour day while performing those duties.  It was not conditioned on the availability or non-availability of funds for outside personnel to perform Porter's secretarial duties.

            The Parol Evidence Rule makes inadmissible evidence of a prior or contemporaneous understanding if offered to contradict or modify the terms of the settlement.  The settlement was the full integrated expression of the parties' agreement on the subject of Ramos' upgrade to Porter's position while she was on sick leave.  It resolved the issue the Association has tried to resurrect.

            The Union filed this grievance in an attempt to "back out of" a decision that became unpopular with the other clerical staff.  The other staff members sought the opportunity for higher pay and altered workday contained in the settlement.  When the District discontinued the nine-hour work day, neither the Union nor Ramos grieved this change.  That part of the settlement was voluntarily waived, or Ramos impliedly may have withdrawn that option in favor of the eight-hour option.

            No evidence of bad faith by the District exists in the subsequent use of two temps in the LMA Plaza.  The District's explanation was reasonable and supported by unrebutted testimony.  The Police Department received funds from the Treasury Department to pay for temporary clerks only in return for providing replacement for disabled Treasury Revenue Protection Guards.

            The grievance also is not arbitrable because the dispute was resolved by Ramos' return to her regular classification.  Once that occurred, the District must be deemed to have settled the grievance by granting the Association's requested relief.  Each step of the Grievance Procedure qualifies continuance of the procedure upon resolution.  The thrust of this grievance was basically resolved when Porter returned and Ramos resumed her regular duties.

            Section 13 governs the Union's claim that a practice existed of using temps to substitute for Porter.  Any such practice would be a "beneficial practice not otherwise covered in this Agreement."  Thus, the General Manager's decision would be final and binding.

            The Union has not established that a binding practice existed.  Porter contradicted the Union's claim that such a past practice existed.  She was replaced by outside personnel on only two occasions in the past six years.  No showing exists of a long and continuous practice, well understood or mutually concurred in by the parties.

            The grievance should be denied based on a practice of temporarily assigning unit employees to non-unit duties with appropriate compensation.  Cadets have performed non-unit fixed location guard duties.  The District generally affords employees the opportunity to promote to other positions within the District.  Employees receive compensation when temporarily upgraded or promoted.  That practice is beneficial to employees in improving skills, knowledge, and increased income.

            Management generally has more discretion to make temporary work assignments than it has in assigning workers to regular jobs.  Observing work jurisdictional lines may cripple efficient opera­tions.  Management may assign tasks which involve minor and occasional variation from job descrip­tions, and which fall within the skills and other factors which are common to several classifications.

            Further, the management rights clause expressly or implicitly permitted this temporary assignment as part of the inherent right to direct the work force.  No express provision of the Agreement limits the District from temporarily assigning Ramos to small amounts of non-unit, non-confidential secretarial duties while continuing to perform some of her regular duties.  Unit clerks typically perform similar duties.

            Section 63 also gives the Chief authority to make "non-patrol assignments" in any manner deemed advisable for the best interest of the Department.  This was a non-patrol assignment.  The Union does not claim that Ramos' assignment was not in the best interest of the Department.  It was in the best interests of the Department that the Chief's office continue to function efficiently through Ramos' upgrade.

            This assignment was not made in an arbitrary and capricious manner.  Ramos was not or­dered to perform the work, but consented and never objected.  She was not required to remain in the position against her will.  Her unit status was not adversely affected by the upgrade.  The Union is attempting to prevent her and others from earning extra money, which clerks have every right to enjoy when qualified and selected.  Nothing in the Agreement prevents her from exercising her free­dom of choice to choose the upgrade, for her own upward mobility, well being and livelihood.

            Section 72.D supports Ramos' temporary assignment to non-unit duties.  All employees have the right to be upgraded into positions outside their unit on a temporary as well as a permanent basis.  Section 72 reflects this expectation.  The Union violated or undermined the meaning and operation of that Section by inhibiting employees from accepting positions temporarily outside the unit.  Ramos enjoyed the freedom of choice implicit in that Section to decide whether to accept the employment upgrade opportunity.  The Union showed bad faith in filing this grievance.

            Ramos' assignment was proper under Section 14.  Rather than contract out the work, the District reasonably afforded Ramos the opportunity to perform it with agreed-upon upgrade pay.  No contract provisions deny employees the right to accept non-unit positions.

            The parties have resolved two similar disputes by appropriate and agreed upon upgrading pay.  Both disputes involved Cadets performing non-unit work.  The Union should be required to resolve this dispute on the same basis.  This, in fact, was done in settling the first grievance.

            Assuming arguendo that a violation existed, Section 77 does not require the District to enter into bargaining with the Union to reclassify the non-unit position.  Under that Section, the District has the sole right to determine whether the needs of the Department require creation of additional unit classifications.  That Section does not authorize the Union or the Arbitrator to make this determination or to require the District to bargain if it decides to reclassify a non-unit position.  If the District decides to create a new classification or reclassify a position, it need only discuss changes in classifications and bargain about salaries in the proposed classifications.  The District has not determined to create a new classification or reclassify a position.

OPINION

PRELIMINARY MATTERS

            The Union is the moving party in this contract interpretation dispute.  It thus bears the burden of establishing, by clear and convincing evidence, that its view of the Agreement is correct and that the District has breached the Agreement.

            The ability to manage and direct the workforce is an inherent management right.  If the Agreement is silent about a matter, an employer may take unilateral action which is not inconsistent with the other terms of the Agreement. 

            Where the Agreement does not specifically address the issue raised in a grievance, the Arbitrator must attempt to discern the parties' intent.  However, the Arbitrator may not legislate in the guise of interpretation.  The Arbitrator must apply principles reasonably drawn from other pro­vi­sions of the Agreement.  The Arbitrator may consider a consistent past practice, if it is of sufficient generality and duration to imply that the parties have accepted it as consistent with their intent.

            Prior grievance settlements may clarify the parties' intent.  Past grievance settlements which are inconsistent with the clear language of the Agreement cannot alter the plain meaning of the Agreement.  The fact that a party has agreed to permit a variance from the contractual requirements in settling one grievance does not, without more, waive those requirements for all future grievances.  This is particularly true where the parties specifically agree that the settlement is not a precedent.  However, such settlements are binding with regard to the grievance out of which they arose.

            Regardless of the sentiments of individual employees, an employer is not free to take action inconsistent with the Agreement, but is free to take action consistent with the Agreement.  Similarly, once the parties have agreed on a grievance settlement, that settlement is binding as to that grievance regardless of whether unit employees later become dissatisfied with its terms.

ARBITRABILITY

            The Arbitrator has no authority to determine the propriety of Ramos' initial assignment to fill in for Porter.  The parties resolved that issue by settling, on a non-precedential basis, of the first grievance.[2]  No evidence exists that the District breached that settlement agreement.  The Union may not now revive the issues presented in the first grievance simply because Porter's sick leave lasted longer than expected.  For the same reason, the Arbitrator has no authority to address whether any "beneficial practice" existed regarding assignment of unit employees to non-unit work.

            When the parties settled the first grievance, no temps were doing unit work.  The settlement did not address, much less resolve, the propriety of assigning temps to unit work while a unit employee was performing work outside the unit.  This issue arose later, when the District hired temps in the LMA Plaza.  The earlier settlement therefore does not bar arbitration of this issue.

            Ramos' eventual return to her regular duties did not render moot the issue of hiring temps while she was performing non-unit work.  No evidence exists that she returned as a result of any mutual agreement to resolve the grievance in this manner.  On the contrary, her assignment to Porter's position was limited to the duration of Porter's sick leave.  The fact that her temporary assignment has since ended affects the remedy, not the question of whether a violation occurred.

THE MERITS

            The duties Ramos performed in the Chief's office were of the same type that she ordinarily performed.  They differed from her regular duties primarily in the location in which she performed them.  Those duties in that location ordinarily were performed by a non-unit employee whose regular duties also included non-unit confidential work.  For purposes of this Decision and Award, Porter's regular duties--both confidential and non-confidential--will be referred to as "non-unit work."  No dispute exists that the temps were performing "unit work."

            For purposes of this grievance, it is of no moment where the District secured replacements for Porter in the past.  The Agreement governs only those decisions which affect unit employees.  Therefore, the only practice potentially of concern under this Agreement is any practice of using unit employees to perform non-unit work while employing temps to do unit work.  No evidence exists that this situation has arisen in the past, much less that any binding past practice exists.

            The past assignment of Cadets to fixed duty posts is also irrelevant to the narrow issue remaining in this case.  Assuming that such work was non-unit work, no evidence exists that the District had temps performing unit work at the time--the gravamen of the Union's complaint in February 1992.

            Section 14, the contracting clause, calls for "department personnel" to perform "work connected with the operation of the Police Services Department."  This provision covers more than "unit work."  Any doubt on this score is resolved by the parties' use of the term "department personnel" rather than "employees," the contractual term for unit employees.  Unlike sub­contracting clauses directed only toward unit work, Section 14 neither sets forth the conditions under which subcontracting may occur nor prohibits all subcontracting.  Thus, the language merely implies a good faith obligation on the part of the District.  It does not provide guidance on the division of labor when it becomes necessary to bring in outside employees.

            Section 72.D merely preserves seniority when an employee accepts a job outside the unit.  It therefore has no bearing on the issue at hand.

            In summary, the Agreement does not directly address the narrow issue to be resolved in this case.  Other contractual provisions do not reveal an intent to restrict the use of temps in these circumstances.  This assignment therefore was subject to the general duty of good faith inherent in any contract.  No evidence exists that the District acted in bad faith.  The Union has not established that Ramos' return to the unit would have obviated the operational need for temps in the LMA Plaza.  The temps replaced light-duty officers who were temporarily assigned to replace Revenue Protection Guards.  The temps performed duties that dif­fered from Ramos' ordinary duties.

            The bargaining obligation of Section 77 would apply only if the District determined that it needed the Chief's secretary position as an additional bargaining unit position.  Nothing in the District's treatment of this assignment expressed such a determination.  On the contrary, the District limited Ramos' duties to only a portion of Porter's full duties.  The District had previously determined that the Chief's secretary should handle confidential matters.  No evidence exists that it changed its determination.  It was able to get along temporarily without having Ramos perform those confidential functions.  No reason exists to believe that it decided to continue indefinitely in this fashion.  On the contrary, Porter resumed her confidential functions when she returned.

            In view of the above, the Arbitrator concludes that the District did not violate the Agreement in assigning temps to the LMA Plaza while Ramos was serving as Porter's temporary replacement.  The District also did not determine that it needed Porter's position as an additional bargaining unit position.  Accordingly, the grievance is denied.

            The parties continue to disagree about the District's ability to assign unit employees to non-unit work at all.  However, absent an agreement to submit issues beyond those fairly raised in the grievance at hand, the Arbitrator is not free to resolve that dispute.

                                                                       AWARD

             4.         The grievance is arbitrable.

                        a.         The parties' settlement of the October 1, 1991, grievance:

                                    i.          Makes non-arbitrable the District's initial temporary assign­ment of a unit employee to perform duties ordinarily per­formed by a non-unit employ­ee;

                                    ii.          Does not make non-arbitrable the District's assignment of unit work to temporary employ­ees at a time when a unit employee was temporarily assigned to duties ordinarily performed by a non-unit employee.

                        b.         The grievance is not moot.

            5.         The District did not violate the Agreement when it assigned bargaining unit work to temporary employees at a time when a bargaining unit clerk was temporarily assigned to duties ordinarily performed by a non-unit employee.

            6.         The District did not determine that the needs of the Police Department required the creation of an additional classification related to the bargaining unit.

 

            DATED:  January 20, 1993

                                                                                                                                                             

                                                                                LUELLA E. NELSON - Arbitrator


[1]           The Treasury Department is not under the General Manager's purview.  Unlike the departments under the General Manager, the Treasury Department had no restrictions on hiring temporary employees.

[2]           Although a similar issue has arisen in another grievance, the parties have not submitted the latter grievance to the Arbitrator for decision.

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