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Title: Sutter Roseville Medical Center and Health Care Workers Union
Date: July XX, 2004
Arbitrator: Fred D. Butler
Citation: 2004 NAC 139

IN ARBITRATION PROCEEDINGS PURSUANT TO
 AGREEMENT BETWEEN THE PARTIES

In the matter between    

HEALTH CARE WORKERS UNION
SEIU LOCAL 250

     and

SUTTER ROSEVILLE MEDICAL CENTER


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CMCS # ARB 03-2084

ARBITRATORS
DECISION AND AWARD

JULY XX, 2004


 

On behalf of the Employee Organization   
Brooke D. Pierman
Weinberg, Roger & Rosenfeld
428 J. Street, Suite 520
Sacramento, CA 95814-23414
On behalf of the Employer
Dipanwita Debe Amar
Howard Rice Nemerovski
CANADY FALK & RABKIN
Three Embarcadero Center

San Francisco, CA 94111

BEFORE:

Fred D. Butler
ARBITRATOR


 

TABLE OF CONTENTS


PROCEDURAL BACKGROUND

This 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.

The 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.

The 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.

An 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 available.

The 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 or waived.

II.

STATEMENT 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 appropriate remedy?

III.

CONTRACT PROVISIONS

The terms of the relevant contract provisions, in pertinent parts, are outlined below.

 

ARTICLE 2.  Management


2.1 Management’S Rights.

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.  The rights, powers, and authority retained soley and exclusively by the Employer include, but are not limited to, the following:

To manage, 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 technological changes.

ARTICLE 6.4 ARBITRATION.

The following procedure will apply if a grievance is appealed to arbitration:

6.4.5  Arbitrators Authority.

The arbitrator 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 Agreement.

The Arbitrator 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 him/her.

6.4.6  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.

ARTICLE 23. WAGES

23.16  Credit for Experience for New Hires.

Persons hired 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:

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.

IV.

STATEMENT OF FACTS

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 171-172)

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)

V.

POSITION OF THE PARTIES

Unions Position

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. 

Further evidence 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 Assistant.

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.

Management Position

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.

VI.

DECISION

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 denied.

 

Dated:                                                                                          FRED D. BUTLER, Arbitrator

 

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