Roseville Medical Center and Health Care Workers Union
ARBITRATION PROCEEDINGS PURSUANT TO
arbitration arises pursuant to the agreement between the SERVICE EMPLOYEES
INTERNATIONAL UNION, LOCAL 250 (hereinafter referred to as the Union) and the
SUTTER ROSEVILLE MEDICAL CENTER (hereinafter referred to as the Hospital),
under which FRED D. BUTLER was selected as Arbitrator and under which this
award is final and binding on the parties.
grievance involves the Hospital’s denial of the Todd Pennington (hereinafter
referred to as the Grievant) request for an increase in wages, based on his
request to receive credit for
prior work experience.
Union filed a grievance on behalf of the Grievant, maintaining that the
Hospitals action is a violation of the Collective bargaining Agreement.
A Step 2 Grievance was filed on the his behalf on or about December 17,
2001 and denied on March 29, 2002. A
step 3 Grievance was filed on or about April 2, 2002 and denied on May 30,
2002. The matter was moved to
arbitration on or about June 11, 2002.
evidentiary hearing, wherein the parties availed themselves of the opportunity
to call witness and present evidence and argument, was held at Sutter
Roseville Hospital, Roseville, California, on April 26, 2004.
Witnessed were duly worn. A
verbatim record of the hearing was prepared, and a transcript was made
Hospital raised an issue related to timeliness of the grievance.
The Arbitrator accepted evidence and testimony regarding this issue.
After deliberation, it was the determined
that the matter was properly the Arbitrator, time-lines having been met
OF THE ISSUE
The parties stipulated at the hearing to the following statement of the
issue to be determined.
Did Sutter Roseville violate Article 23.16 of the Collective Bargaining
Agreement? If so, what is the
The terms of the relevant contract provisions, in pertinent parts, are
retains, solely and exclusively, all the rights, powers, and authority which
it exercised or possessed prior to the execution of this Agreement, except as
specifically abridged by an express provision of this Agreement.
The rights, powers, and authority retained soley and exclusively by the
Employer include, but are not limited to, the following:
direct, and maintain the efficiency of its operations and personnel; to manage
and control its departments, buildings, facilities, and operations; to create,
change, combine, or abolish jobs, departments, and facilities in whole or in
part for economic and operational reasons; discontinue work for economic or
operational reasons; to direct the staff; to increase or decrease the staff
and determine the number of employees needed; to hire, transfer, promote,
demote, suspend, discharge, and maintain the discipline and efficiency of its
employees; to lay off employees; to establish work standards, and require
overtime; to assign work and decide which employees are qualified to perform
work; to schedule and change working hours, shifts, and days off; to adopt
rules of conduct and safety ruled, and penalties for violation thereof; to
determine the work to be performed and the services to be provided; to
determine the methods, processes, means and places of providing services; to
determine the location and relocation of facilities; and to effect
procedure will apply if a grievance is appealed to arbitration:
shall have no authority to (1) amend, modify, change, add to, or subtract from
any provision of the Agreement; (2) to base any decision on ay practice or
custom which is inconsistent with any provision of this agreement; (3) render
an award on any grievance occurring before the effective date, or after the
termination date, of this Agreement; (4) render an award that nullifies or
abridges any management right specifically reserved to management by this
shall have no authority or jurisdiction other than to determine whether the
Employer violated an express provisions(s) of this Agreement and if so what is
the appropriate remedy under the terms of the said Agreement.
The aarbitrator’sjurisdiction shall be limited solely to the dispute
submitted to him by the parties, and s/he shall have no authority or any
jurisdiction whatsoever to issue any award of declaratory relief, prospective
relief, or to decide any issue other than the one submitted by the parties to
Burden of Proof.
Except in the
case of discipline or discharge failure of the Union to satisfy the burden of
proof requires the arbitrator to find on behalf of the Employer.
Credit for Experience for New Hires.
into bargaining unit positions after 11/3/97 will be placed at Step 1 in the
appropriate classification, except for new hires in Grades 6 through 9.
The facility will consider these new hires years of experience when
determining their assigned step, up to and including Step 3 as follows:
Center will credit experience in same or comparable positions in JCAHO
accredited acute care hospitals based on the following schedule: with 0-3
years, experience, the employees will be place at Step 1; with 3-6 hears
experience during the last 7 years, the employees will be placed at Step 2;
with 6 or more years of experience in the last 8 years, the employee will be
placed at Step 3.
Following is a summary of the findings of facts as determined by the
arbitrator based on the testimony
The Grievant Todd Pennington was hire by the Hospital in September 2001
in the position of Emergency Room Technician.
The Hospital is an acute care hospital located in Roseville, California.
It operates an emergency room for patiendts suffernin from any type of
emergeyn, ranging from minor inuries to life-thereatenein condisitons, for
example casrida arrest, severe respitsory disctrres, or blun and pentetrating
trauma. (RT 10-141) The Hospital
is a Lvfel 2 truama cente and is accredtied by the American College of
Surgeons to provide complicate trauma services beyon that which mcost ER
Departmtnes are licensed to handle. (RT
141) The Hopsial also maintianis a helicaopter pad, whic enables rescue
operations to tansfporst taruma patiens in emergency situations t the
Hospaital (RT 98-99)
At the time of the Grievant’s hiring, Emergency room were
required to have a high school diploma or equiaivalent and
certificatioins as an Emergencyey Medial Techanincian(EMT) or Nursing
Assistant Certification(N/A) (See Union Ex-3, Mgmt Ex 3 & 4)
The EMT training teaches idividuals the appropriate procedured t respond
to emergencies and act as a paramedic in an an abmulandcce. (RT 145-146).
There are varieous leveles of training ance cterfitifations of EMT I
and EMT II.
In March, 1998 the osition description for the postion of Emergecny Room
Technician required that applicants posses either a EMT Cerficiation or a
Nursing Assintant Certification. However
in August, 2000 the position description required that the ERT posess
certification as a EMT 1, EMT 2 or EMT Paramedic.
The Nursing Assistant Certification was removed by Catherine Ross, who
as Dirctor of Critical Care was also supervisor the ER Department (RT 147)
Ms. Ross made this revision after assuming this responsiblity becasue
she realized that the employees who were assumbin the ER Tech positon with
only nursing aide backgsrounds, with out EMT certifications were not able to
function at the required level. The
Hospital advised the Union of this change in a letter dated September 12,
2000. (Mgmt Ex. 5)
As outlined above, the Grievant was hired as a ERT on or about September
14, 2001. Prior to that the
Grievant wa employed as a ERT for Marin xxxxx for one year and nine months.
Marin xx is a JCAHO accredited acut care hospital.
The Grievant also worked as a Nursing Assistant for four year years and
nine months at California Pacific Medical Center, also a JACHO accredited
acute care facility..(RT 81-83) The
Grievant also has training and experience as a firefighter.
He has a certificate of training as a N/A and as a EMT 1. (RT 82-84)
The Grievant’s duties as a ERT at Marin were similar to the duties
performed at Sutter. (RT )
At California Pacific, while serving as a N/A the Grievant was assigned to the
intensive care unit. He was also
part of the “code blue” team, when someone needs cardioplkum,onary
resusucitation (RT 90)
Prior to the time that the Grievant was hired, there were no nursing
assistants from outside of Sutter Rosevile that were awarded positions in the
ER. The only persons that had
nursing assistants background that came to the ethaaht naseed t ed d Teo,ei
ahgne in aletter dated, ae. This
ERT positions were in house transfers.(RT 150)
In addition, from time to time the ET department hasd nursing astants
float through the ERT position when the hospital is short staffed. (RT 169)
However they function as a N/A unless they are qualified as an EMT and have a
secondary job classifcation as a ERT. In
those cases they are classifid as such as receives the appropriate wages. (RT
In addition prior to the 2000 change in the job descriptions, some
nursing assistants, who were already on staff were grandfathered into ERT
positions without the necessary certification nor were they terminated when
the qualificqaitons changed. (RT 201) However even with addional training some
of these individuals were not able to perform and were offeredj other
positions outside of the ER.
Upon the offer of employment, the Grievant expressed concerns about his
starting salary. More
specifically the Grievant inquired about
receiving credit for his prior experience. (RT 15) He believed that the
experience he had as a N/A at California Pacific Medical Center should be
considered comparable for purposes of an increase in his entry level steps. He had over one year’s experience at Marin and over four
years expereince at CPMC, which would give him over six years experiecne and
qualify him for entry at the Step 3 level.
He made this inquiry again through his Supervisor shortly after his
hire. He was told after a second
review of his application and
discussion that his experience was not comparable and therefore he could not
receieve any credit. (RT 17)
Other than the initial application for employment and at the arbitration
hearing, the Grievant did not present detailed information to the Hospital
about his former positions. (RT 122-125)
OF THE PARTIES
It is Union’s position that the Grievant should have been elevated to
a Step 3 of the salary range based on comparability of the work that the
Grievant performed in his prior positions.
More specificially the Union maintains that in comparing the eighty six
funtiond perfrome as a ER Technician at the Hospital, the Grievant perfomred
82 of those fnctions as a Nursing Assistant at California Medical Cener.
Therefore he perfomred 93% of the required ER Tech josb taske.
The Union also maintians that the job specification forwarded to them
from the Hospital outlines this comparisison by allowing an applicant to
qualify by possessing either a EMT Certification or NA Certification.
Therefore they maintain that the Hospital, by allowing this is conceded
that the positions are comparble.
The Hospital contends that this job specification is not the correct
one. However it was provided to
the Union in response to a document request and it was not until the
Arbitration that this job specifcation was called into question. The Union relied upon the information, as it has in the past,
that it receives from Management.
of this comparability is indicated by the Hospital’s policy of
“grandfathering “ N/A, with no EMT certifications, into the ERT position.
The Union maintains that this was done because the N/A position was
comparable and that the N/A’s were able to perform in that position without
the certification. In addition
the Hospital floats N/A into the emergency room at least twice per month,
where they are perform ERT functions.
The Grievant was
able to perform his duties as a ERT without any substantive training.
He was alble to do so because of his experperince as a Nursing
Finall it is the
Unions position that the contract language may be moot based on the
Hospitals’ position that there are no othe hospistal positions that are
comparable to the ERT position. They
contend that the Hospital is attempting to substitute “same” for
“comparable.” The Union
maintains that since there is no defintion of the term comparable in the
contract , that the Arbitrator must give the work its plain meaning.
Therefore the Union request that the Grievance be granted and that the
Grievant be made whole.
It is Management’s position that it did not award credit experience to
the Grievant because the position of Nursing Assistant and the position of
Emergency Room Technician are totally different and “are in no sense the
same or comparable.”
They contend that
the Union cannot overcome their burden to present evidence to the contrary.
They contend that the rationale for the Hospital changing the job
specification in year 2000 was to acknowledge that the practice of placing NA
into ERT positions was not in the best interest of the Hospital or patient
care because the N/A were not qualified to perform the ER Tech Job.
The Hospital contends that after a review and comparison of the duties outlined in the job specifications of the N/A positon at CPMC and the ERT position at Sutter, it was determined that when the ERT is assigned to the trauman resuscitation rooom or the rapid medical evalualtion area, 90% of the time spent by ERT is performing duties that the N/A is not required to perform or qualified to perform. When the ERT is assinged to the general area of the ER, approxiamtely 60% of the ERT time is spent on duties that a NA does not perform.
The Hospital has
identified and presented a list of duties that are crucial to patient care
that cannot be performed by the N/A.
The Hospital acknowledges that the N/A at CPMC must respond to emergency
situations, for example “Code Blue.”
However these under Code Blue, N/A would only be reuire to know how to
being rescu breathing and chest compresesion but not all of the other trauma-relted
duties required of the ERT.
TheHospital also acknowledges that from time to time when it is short
staffed, Nas are askd eo float into the ER to assisst the ERT and perform somc
eof the dutes of an ERT. However
the Nas are only allowed to prefomr those functions that he or she is
qulaified to perform, for exmaple taking cital signs or undressing patients.
However there are Nas who, because there is no benefitted position work
for the Hospital in a secondrary job classification asa n ERT.
The Hospital maitnatins that the management rights clause of the
Contract provide that Management specifically has the dsicretion to establish
work standards and ecide the qualifications for its employees.., the contend
thatat nothing in Arataicel 23.16–or any other provision for that
mataataer-abriges this right.
In that regard, the Hospital maintains that the Union bears the burden
of proof and offers nothin got contradict either ?Sutter roseville’s
discretion to determine the appropriate credit givaen to the Grievnt.
Further that the Union has offered no evidence other than the testimony
of the Grievant to demonstrate that the duties performed as a NA at CPMC are
comparable to the duties he performed at the Hospstial.
The Hospital maintaitn taht the Union does not challend gher Hospitals
discsretion to determine the minimum qualification sof its positions.
Nores it appear to contest that the Hospital has th discsretion to
detemine when positions are comparbale within the meaning of Article 23.16.
They maintain that not awarding credit has been adopted as a “past
practice” based on the fact that the practice has never been challenged,
therefore the parties have never interpreeted Articel 26.13 to allow ERT to
receive pay credit for prior NA expereience.
It is the Hospitals position that the Greivant’s testimony about his
duties at CMPC are slef serving and cannot be verified.
In addition, his testimony for the most part support the Hopsitals
positonm. For example the
Greivant admitted that the NA’s do not perform many of the duties performed
by the ER.
Finally the Hospital maintains that the position description sent to the
union ws a clerical error. This
they contend is verified by the testimony of Catherine Ross, who states that
she is the only person autorizied to drafat the postiion descsriiopnin and the
the job description sent to the union was no the correct one.
The maintain that even if the position sent to the union was in effect,
that had no bearin gon whether the Hospital would have allowed credit for t;he
Grievant’s experience as a NA bevcause the Hospital has never awarded
credtit to ERT for theri prior experience as a a NA.
Finally the Hospital maintains that the parties in contract negotiations
have recognized that the NA and ERT positions are not comparable.
This is based on the fact that the contractual pay grades for NAs and
ERT’s are different. I.E. ERT’s are compensated at a higher grade level.
The Union cannot, now , through the grievance and arbitration
procedure, attempt to obtain from the Arbitrator a result that they have been
unable to obtain through multiple contract negotiations.
Therefore Management request that the Grievance be denied.
Section of the Collective Bargainin Agreement reads in pertinent parts
“The Employer retains, solely and exclusively, all the rights, powers, and
authority which it exercised or possessed prior to the execution of this
Agreement, except as specifically abridged by an express provision of this
Agreement. . . .”
Section state in
pertinent parts “. . . The Medical Center will credit experience in same or
comparable positions in JCAHO accredited acute care hospitals based on the
following schedule: with 0-3 years, experience, the employees will be place at
Step 1; with 3-6 hears experience during the last 7 years, the employees will
be placed at Step 2; with 6 or more years of experience in the last 8 years,
the employee will be placed at Step 3. . . “
While some arbitrators will differ on the use of the term “abriged” in this contest, under the terms of the contract, this section does limit management’s discretion as it pertains to when credit experience in the same or comparable positions will be given. Under the terms of Section 23 , notwitstandint ghte rights identified in Article 2, the Hospital is obligated to follow the directive of tis particular section.
Notwithstanding the limitation on its discretion in the above area,
Management because it has the responsibility to manage, direct, and maintain the
efficeinec of the operations has the right to establish qualifications for the
various positions to accomplish that task.
Nothing in the matter before me appears to challenge that right.
The question before this Arbitrator is whether or not Management in
practicing that right, violated that section of the contract that expressly
places a limits on its discretion.
Therefore the issue in this matter is not just whether the positions of
Nursing Assistant and Emergency Technicians are similar.
There was ample testimony on both sides to suggest that these two
positions in their generic forms are not the same, if just based on the
educational requirements. This
is also recognized by the fact that the grade level assigned to each are
different with the ERT representing tht higher grade.
To further suggest that they are comparable depends on the task assigned
to each.For example, a NA assigned to the emergency room is more likely to
perform duties similar or comprable to a ERT.
However a NA assigned to hospital ward would not.
It is in this context that the grievane shoulld be evaluated.
Whether or not the Greivant while a Nursing Assistant at CPMG performed
duties comparable or similar to those performed at Sutter Roseville.
If so, should all or some of these duties
have been considered in evaluating his entry wage level at Sutter and did
Managent violate the CBA when making that analysis.
Therefore the actions of Management is upheld and the Grievance is
FRED D. BUTLER, Arbitrator