Title: Bay Area Rapid Transit District and Bart Police Officers Association, Local 1008
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.
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.
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:
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?
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
District would formulate the issues as follows:
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.
Whether the Grievance before the Arbitrator is subject to Agreement
Section 13.0, Beneficial Practices; and if so, is it a matter for advisory
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?
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?
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?
Arbitrator formulates the issues as follows:
Is the grievance arbitrable?
Does the parties' settlement of the October 1, 1991, grievance make non-arbitrable:
The District's initial temporary assignment of a unit employee to perform
duties ordinarily performed by a non-unit employee; and/or
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?
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?
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?
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
RELEVANT SECTIONS OF AGREEMENT
For the purpose of this Agreement:...
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. ....
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. ....
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. ....
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. ....
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:
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.....
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
ASSIGNMENTS AND TRANSFERS
Assignments or transfers shall not be made in an arbitrary or capricious manner, or to show or to carry out favoritism.
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.....
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
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.
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 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:
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.
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.
The temps worked until late February, when one of the disabled Revenue
Protection Guards returned to work.
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.
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.
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.
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.
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
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
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
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
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
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
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
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
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
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
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.
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.
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
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.
The grievance is arbitrable.
The parties' settlement of the October 1, 1991, grievance:
Makes non-arbitrable the District's initial temporary assignment of a
unit employee to perform duties ordinarily performed by a non-unit employee;
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.
The grievance is not moot.
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.
The District did not determine that the needs of the Police Department
required the creation of an additional classification related to the bargaining
DATED: January 20, 1993
LUELLA E. NELSON - Arbitrator
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.
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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