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Title: City of Tampa and ATU / 1464    
Date: November 15, 2007

Arbitrator:  Phyllis Almenoff
Citation: 2007 NAC 122

 

FEDERAL MEDIATION AND CONCILIATION SERVICE

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In the Matter of the Arbitration                                                  

                            - Between –                                                           

City of Tampa

                                                “Employer”            

-and-                                              

ATU / 1464    

                                                “Union”                 

                                                              Case Number:  07-53123-3
                                                                                    Issue: Reclassification –
                                                                         E/R 2006-087 – Andrew Pederson &
                                                                         Kenneth Coleman Purchasing
                                                              Site:
  FL

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APPEARANCES:

For the Employer (City)

Erin G. Jackson, Attorney
Thompson, Sizemore & Gonzales
201 N. Franklin Street, Suite 1600
Tampa, Florida 33602

               For the Union

Kenneth R. Kirk, International Vice President
Amalgamated Transit Union
1236 Spring Water Drive
Lancaster, Texas 75134

BEFORE:   DR. PHYLLIS ALMENOFF, ARBITRATOR

WITNESSES TESTIFYING

          EMPLOYER (City)

Called by the Employer

Sarah Lang                         Employee Relations Manager
Lydia Storck                       Personnel Research Supervisor
Greg Spearman                  Purchasing Director
David Peon                         Purchasing Inventory
Tarey Franxman                 Employee Relations Specialist

         

          UNION

Called by the Union

Kenneth J. Coleman            Inventory Tech II (Grievant)
Andrew C. Pederson            Account Tech I Accounts Payable (Grievant)

Also Present
Martha D. Stevens              President / B.A. ATU Local 1464

INTRODUCTION

The Pederson and Coleman grievances were submitted to Arbitrator Phyllis Almenoff pursuant to the terms set forth in Article 6 of the Collective Bargaining Agreement between the parties (Joint Exhibit 1) for a final and binding resolution of the issue.  The Arbitrator was jointly selected by the parties from a list submitted to them by the Federal Mediation and Conciliation Service of the United States Government.

Mr. Pederson’s grievance was filed August 7, 2006. Mr. Coleman’s grievance was filed August 15, 2006. Both grievances were processed through the steps of the grievance procedure without satisfactory resolution. The grievances were based upon similar circumstances relating to the issue of reclassification of positions.  As per the provisions of the Collective Bargaining Agreement (Article 6.6.2) the grievances were consolidated. The grievance was properly before the Arbitrator for a final and binding decision.

The hearing took place on September 5, 2007 at 306 East Jackson Street, 7th Floor Conference Room, City Hall, Tampa, Florida.  At that time both parties were afforded full opportunity to present testimony, offer evidence and arguments in support of their respective positions and cross-examine witnesses. The City of Tampa was represented by Erin Jackson, Attorney and the Union (Amalgamated Transit Union Local 1464) was represented by Kenneth Kirk, International Vice President.  Both the Employer and the Union presented their closing arguments in briefs that were received by the arbitrator on  November 2, 2007 at which time the hearing and the record were closed.

STATEMENT OF THE ISSUE

After lengthy discussion, the parties stipulated to the following issue:

             Has the City violated the Contract, or Article 2.1 specifically, by putting the grievants’ request for reclassification on hold?

 If so, what shall be the remedy?

The grievances dated August 7 and August 15, 2006, state the following:

Pederson Grievance: (Joint Exhibit 2)

I wish to grieve the fact that  several Accounting Tech I positions of the payroll section at  Revenue and Finance were granted and paid a reclassification on 7/27/06 and that the reclassification was made retroactive for 1600 hours.

A reclassification for my position was submitted about 3 years ago and approved by the budget department more than 2 years ago.  However, I have been told repeatedly by Employee Relations, Personnel, and the Inventory Manager that my reclassification cannot be processed due to the compensation study being conducted byMGT .  The reclassification for payroll (and others) has been processed nonetheless.  I submit that this is discrimination on the part of Personnel / Employee relations because the policy is not being applied equally to everyone.

 

Articles/Sections Violated: 2.1

 

RequestedRemedy:  I request that my reclassification be processed immediately and made retroactive for 3 years, to include all applicable step increases under the system in place at the time.

 

Coleman Grievance: (Joint Exhibit 3)

On 7-27-06 several Accounting Tech I were granted a reclassification and the reclassifications were retroactive for 1600 hours.

A reclassification for Inventory Tech II was submitted 3 years ago, and approved by the budget department.  However, I was informed by the Inventory Manager that Employee Relations and Personnel said that there were no reclassifications to be processed because of the compensation study being done by MGT.

I have found out the reclassifications have been done for other Departments.  I feel this is discrimination on the City’s part because we are not being treated the same.

 

Articles/Sections Violated: 2.1

 

RequestedRemedy:  I request that the Inventory Tech II reclassification be processed right away, and made retroactive for three years.  To include all step increases under the Contract at that time.

 

On August 24, 2006 the Purchasing Director’s disposition of the grievance at step 2 for each reclassification request was as follows:

 

The Step 2 grievance process regarding the above referenced matter was held on Thursday, August 17, 2006.

 

After review of the information presented at the hearing and subsequent investigation, it is determined that there will be no further action regarding a reclassification request for your position at this time.  The City is engaged in a comprehensive pay and classification study with MGT of America which is the reason why your reclassification request was never reviewed or approved by Human Resources.  Until the results of the MGT Study are in, reclassification requests have been put on hold throughout the City, with the following exceptions:

·         Newly created positions;

·         Positions significantly altered by reorganization; and

·         Positions where extraordinary external market conditions require their re-evaluation (for example, competitive recruiting)

 

The grievance regarding your reclassification request does not fit the above criteria.  The results of the MGT Study will be used to determine whether or not a reclassification of your position is appropriate.

On October 30, 2006 the step 3 grievance response was issued to both grievants by Kennith C. Perry, EOE/Labor Relations Manager and states as follows:

 

                The third step grievance hearing regarding the above referenced matter was held on October 16, 2006.  As provided in Article 6.3.2 of the A.T.U. Contract, the time limits to respond to your grievance were extended to Friday, October 27, 2006.

After review of the information presented at the hearing and subsequent investigation, it is determined that appropriate procedures were followed regarding the reclassification of the Accounting Technician I positions in the Payroll Division.  The Revenue & Finance Department submitted a Position Review Form and Job Classification Questionnaires for these positions.  The Human Resources department scheduled this job classification review for FY04.  The job classification review for this position was subsequently placed on hold due to the implementation of a new payroll software program.  After a delay of approximately two years, Human Resources completed the job classification review.  It was determined that the Payroll Division classification of Accounting Technicians I, paygrade 24 will be reclassified to the position of Payroll Technician, paygrade 027.

The second issue in your grievance concerns your reclassification request for the position Inventory Technician I.  The Human Resources Department received the Position Review Forms from Budget on October 27, 2004 for inclusion in the FY05 classification review plan.  In the workplan developed by Human Resources, the Inventory Technician Positions were projected for review during the summer of 2005.  However, no further action was taken on this reclassification request because all routine classification requests were suspended during the FY05 budget pending the results of the comprehensive classification and compensation study.  Therefore, Human Resources did not review your position and your reclassification request was not approved.

 

At the grievance hearing it was mentioned that the Budget Department approved the reclassification request for your position, Inventory Technician I.  The Budget Office does not approve reclassification requests.  This office reviews the position review forms as part of the budget process for projection purposes and provides this information to Human Resources.  A position review request can only be approved after Human Resources conducts a job audit and determines the appropriateness of the reclassification request.  No further action was taken on the Purchasing reclassification request because all routine reclassification requests were suspended during the FY05 budget pending the results of the comprehensive classification and compensation study conducted by the firm of MGT of America, Inc.

Based on the information presented, your grievance is denied and the step two-grievance response is upheld.

 

The Union requested arbitration.

PERTINENT CONTRACT LANGUAGE (Joint Exhibit 1)

PREAMBLE/AGREEMENT

It is the intent and purpose of this Agreement to assure a mutually beneficial working relationship between the parties, hereto, to provide an orderly and peaceful means of resolving any misunderstandings, or differences which may arise and to set forth herein full agreements between the parties concerning rates of pay, wages, hours, and other terms and conditions of employment.  There shall be no individual arrangement contrary to the terms herein provided.

 

ARTICLE 2 – NON-DISCRIMINATION

 

2.1   The parties specifically agree that all provisions of this Agreement shall be applied in accordance with applicable law to all employees in the bargaining unit without regard to race, creed, color, national origin, religious affiliation, age, sex, disability, marital status, sexual preference or membership/non-membership in any labor organization; except that the certified employee organization shall not be required to process grievances for employees who are not members of the organization.

 

                                                                         * * *

               2.3    Employee allegations of discrimination may be filed through the grievance procedure (Article 6), The Federal Equal Employment Opportunity Commission, the State’s Florida Commission  on Human Rights, the City’s Department of Community Affairs (Office of Human Rights/Community Services) and/or any other procedure provided by law.

 

ARTICLE 6– GRIEVANCE PROCEDURE AND ARBITRATION

                6.1 Definition.  For the purpose of this Agreement, a grievance is any dispute or difference between the employee and the City involving the meaning interpretation, or application of the provisions of this Agreement including discipline, or discharge, and working conditions.

                6.2  Scope.   All grievances shall be submitted in writing referring to the specific article and section of this Agreement upon which the grievance is based and shall include a requested remedy and a concise statement of the facts alleged to support the grievance……

                                                                                                               

                                                                                      * * *

                6.6   Arbitration

 

                            6.6.1         Any grievance not resolved in the grievance procedure, after having been fully processed, may be referred to final and binding arbitration.

                6.6.2         Upon timely notice prior to the scheduling of hearings and when mutually agreed, the consolidation of one or more grievances based upon similar circumstances for hearing and resolution before the arbitration shall be permitted.

 

                                                                                      * * *

 

                6.6.4                As promptly as can be arranged, the arbitration hearing shall be held.  The Arbitrator shall limit the decision strictly to the interpretation, application, or enforcement of specific articles of the Agreement and shall have no power to delete from, add to, change, or otherwise modify or alter this Agreement or any part thereof.

 

6.6.5          The parties shall jointly share the expenses of the hearing and the fees of the arbitrator.

 

ARTICLE 3 – CITY’S MANAGEMENT RIGHTS

            3.1        Except as expressly limited by any provision of this Agreement, the City reserves and retains exclusively all of its normal and inherent rights with respect to the management of its operations, whether exercised or not, including, but not limited to, its rights to determine, and from time to time redetermine, the number, location and type of its various operations, functions and services; the methods, procedures and policies to be employed; to discontinue the conduct of any operation, function or service, in whole or in part; to transfer its operations, functions or services from or to, either in whole or in part, any of its departments or other divisions; to select and direct the working force in accordance with requirements determined by the City; to create, modify or discontinue jobs; to establish and change working rules and regulations; to establish and change work schedules and assignments; to transfer, or promote employees; to lay off, furlough, demote, terminate or otherwise relieve employees from work for lack of work, lack of funds, or other legitimate reasons; to suspend, discharge, demote or otherwise discipline employees for just cause, to subcontract; and to alter or vary past practices and otherwise to take such measures as the City may determine to be necessary to the orderly and efficient operation of its various operations, functions and services.

                                                                                      * * *

3.3.        The exercise of the above enumerated rights shall not preclude employees or their representatives from raising grievances, should decisions of the above matters have the practical consequences of violating the terms and conditions of this collective bargaining agreement.

 

BACKGROUND

The Amalgamated Transit Union, A.F.L.-C.I.O.-C.L.C., Local 1464, hereinafter referred to as the “Union” is the exclusive bargaining representative for the employees certified in case number 8H-RC-763-0135. The Unit covers full and part-time positions listed in the Agreement as well as new job classifications created by the City that meet the bargaining unit definitions.  The City of Tampa, a municipal corporation of the State of Florida, is herein referred to as the “Employer” or the “City.” The City employs approximately 3,000 employees. Both grievants were represented by the union throughout the grievance and arbitration procedures.

 

Andrew Pederson, Grievant, has been employed by the City of Tampa since May of 1983.  At the time the grievance was filed his title was Accounting Technician I.  About three years ago, he applied for a reclassification of his position. Kenneth Coleman, Grievant, has been employed by the City of Tampa since November of 1994.  Three years ago, he submitted a reclassification request for Inventory Technician II, his position at the time. The requested reclassifications would have provided increased pay grades.   Both men were informed by the Inventory Manager that the Budget Department had approved their requests.  Subsequently, the men were first told that reclassifications were not being processed because the Human Resources Department was changing its software program to People Soft which was a lengthy process and then because the City was engaged in a comprehensive pay and classification study conducted of city positions by MGT of America, a consulting firm. 

 

The Collective Bargaining Agreement provides a definition of a grievance as well as its scope as follows:

 

6.1 Definition.  For the purpose of this Agreement, a grievance is any dispute or difference between the employee and the City involving the meaning interpretation, or application of the provisions of this Agreement including discipline, or discharge, and working conditions.

 

            6.2  Scope.   All grievances shall be submitted in writing referring to the specific article and section of this Agreement upon which the grievance is based and shall include a requested remedy and a concise statement of the facts alleged to support the grievance……

The grievances were filed by Mr. Pederson and Mr. Coleman when they learned that other employees’ positions had been reclassified and these employees received retroactive pay.  Both grievants allege that they have been discriminated against because they received unequal treatment.

 

POSITION OF THE PARTIES

Position of the Union

The Union contends that that the Grievants were discriminated against when the City failed to reclassify their positions but reclassified several other positions.  They cite Article 2.1 of the Agreement as having been violated. Article 2.1 (non-discrimination)  states the following:   

 The parties specifically agree that all provisions of this Agreement shall be applied in accordance with applicable law to all employees in the bargaining unit without regard to race, creed, color, national origin, religious affiliation, age, sex, disability, marital status, sexual preference or membership/non-membership in any labor organization; except that the certified employee organization shall not be required to process grievances for employees who are not members of the organization.

In support of its position, the Union offers the following arguments:

   

1.  The Union cites the preamble to the Agreement which seeks to assure a mutually beneficial working relationship between the parties

2.  Three years ago, both grievants filed to have their job titles reclassified. More than two years ago, the Inventory Manager informed them that their requests were approved by the Budget Department.

3.  Upon inquiry as to the status of their requests, Employee Relations, Personnel and the Inventory Manager indicated that reclassification requests could not proceed because of a major and comprehensive study that was being conducted by MGT of America.

4.  Recently they learned that several employees’ positions had been reclassified and retroactive salary paid to these employees.

5.  The grievants allege that the City attempted to “hide” these reclassifications.

6.  The Union believes that the grievants have been discriminated against because they received unequal treatment.

Position of the City 

The City argues that the Collective Bargaining Agreement and specifically Article 2.1 were not violated when the grievants requests for job reclassification were put “on hold.” To support its position, the City asserts the following arguments:

1.  Each year the City receives between 75 and 150 requests for reclassifications of employee positions from supervisors.  A lengthy and time consuming process was in place that involved budget considerations, peripheral review of these requests, intense study of position responsibility and changes, evaluation of employees, etc; Various departments and many administrators provide input into the decision making process. The Human Resources Department provides final approval after (1) intensive study of positions to determine whether there are increased or changed responsibilities; (2) careful evaluation of the employees work performance; (3) meeting with the recommending department; and (4) conferring with the Budget Department.

2.  In 2003, the City began the lengthy process of changing the human resources software program it had been using delaying the job reclassification process.

3.  In the spring of 2005, the City entered into a contract with an outside consulting firm (MGT of America) to have all 3,000 positions (excluding police and fire positions) studied. The reclassification process was halted with three exceptions: (1) Newly created positions; (2) Positions significantly altered by reorganization; and (3) Positions where extraordinary external market conditions require their re-evaluation (for example, competitive recruiting) 

4.  The reclassification of the grievants’ positions was put on hold along with at least one hundred other positions.

5.  Neither the Inventory Manager nor the Budget Department had the authority to approve reclassification of positions.

6.  Some exceptions to putting reclassifications on hold were made for business reasons or when directors personally appealed to the Employee Relations Manager and provided a good case for reclassification.

7.  There was no appeal made on behalf the Grievants.

8.  The City did not “hide” the fact that some positions were reclassified.  All City business is public record.

9.  The City did not discriminate against the Grievants as alleged.

10.  The Union is attempting to usurp management’s rights to determine which job classifications it requires and how and when to select employees to fill those classifications and does not have the right to manage the City’s operations.

11.  The Union did not provide any evidence that the Grievants deserved a higher pay grade.

  

ANALYSIS OF THE EVIDENCE

The issue to be determined in this dispute is whether the City violated the Agreement, or Article 2.1 specifically, by putting the grievants’ request for reclassification on hold?  

If so, what shall be the remedy?

 

Job classification requests were submitted three years ago on behalf of the grievants who were later told by the Inventory Manager that the requests had been approved by the Budget Department.  Actually, the process for approval is complex and requires intense review, study and evaluation by several departments and administrators.  The reclassification process was put on hold first because of a change in software programs and then because of a study contracted by the City with MGT of America to provide a comprehensive pay and classification study of all positions. The City indicated that certain exceptions would be made. It came to the attention of the grievants that several employees who did not fall into the categories previously cited had their positions reclassified.  In addition, these employees whose jobs were reclassified received retroactive pay.  The grievants further claimed that the City tried to hide these reclassifications.  At that point they filed a grievance alleging that they had been discriminated against.

The testimony indicated that the Union and the Grievants may not have been aware of several factors.

·        They may not have been aware that more than one hundred requests for job reclassification were received by the City.

·        They were unfamiliar with the process utilized to approve job reclassification or the departments and administrators involved.

·        They were unaware that the Inventory Manager and/or the budget Department did not have the authority to approve budget requests.

·        They were unaware that the supervisors of the employees who received reclassifications had personally appealed to the Employee Relations Manager to evaluate their positions.

·        They were unaware that the Inventory Manager who had requested job reclassification of the Grievants’ positions had requested job reclassification for ten of the thirty-eight positions he supervised.

·        They were not aware that the Inventory Manager had not appealed to the Employee Relations Manager to make exceptions for the grievants.

The Contract contains a strong management rights clause providing the City with the right to direct the work force as needed provided that they do not violate the terms and conditions of the collective bargaining agreement.  (Article 3)

            3.1        Except as expressly limited by any provision of this Agreement, the City reserves and retains exclusively all of its normal and inherent rights with respect to the management of its operations, whether exercised or not, including, but not limited to, its rights to determine, and from time to time redetermine, the number, location and type of its various operations, functions and services; the methods, procedures and policies to be employed; to discontinue the conduct of any operation, function or service, in whole or in part; to transfer its operations, functions or services from or to, either in whole or in part, any of its departments or other divisions; to select and direct the working force in accordance with requirements determined by the City; to create, modify or discontinue jobs; to establish and change working rules and regulations; to establish and change work schedules and assignments; to transfer, or promote employees; to lay off, furlough, demote, terminate or otherwise relieve employees from work for lack of work, lack of funds, or other legitimate reasons; to suspend, discharge, demote or otherwise discipline employees for just cause, to subcontract; and to alter or vary past practices and otherwise to take such measures as the City may determine to be necessary to the orderly and efficient operation of its various operations, functions and services.

                                                                                      * * *

3.3.        The exercise of the above enumerated rights shall not preclude employees or their representatives from raising grievances, should decisions of the above matters have the practical consequences of violating the terms and conditions of this collective bargaining agreement.

 

The Contract is silent on the issue of reclassification of positions or the length of time in which determinations must be made.

In filing a grievance, an employee must indicate the specific article and section of the Agreement upon which the grievance is based and indicate the concise facts upon which it is based.  The Grievants allege that Article 2.1 has been violated.  It reads as follows:

The parties specifically agree that all provisions of this Agreement shall be applied in accordance with applicable law to all employees in the bargaining unit without regard to race, creed color, national origin, religious affiliation, age, sex, disability, marital status, sexual preference or membership/non-membership in any labor organization; except that the certified employee organization shall not be required to process grievances for employees who are not members of the organization.

 

There was no testimony or evidence that the Grievants had been discriminated against for any of the reasons cited above. The grievants do not claim to be members of a protected class. They felt that they had been treated differently from a few employees who had been granted reclassifications while the Grievants were still on “hold.”  It is not illegal to treat employees differently nor is it a violation of the Contract.  The City explained their rationale at the hearing.  They also made it clear that there was no attempt to hide the reclassifications.  City records are public documents.

The role of the Arbitrator is delineated in the Agreement as follows:

The Arbitrator shall limit the decision strictly to the interpretation, application, or enforcement of specific articles of the Agreement and shall have no power to delete from, add to, change, or otherwise modify or alter this Agreement or any part thereof.

 

The burden of proof in a contract interpretation case rests on the Employee. The Union has not sustained this burden.

After providing full, fair, and careful consideration to all evidence and arguments presented by both parties, I conclude that the facts and testimony in evidence establish that the Collective Bargaining Agreement and specifically Article 2.1 was not violated by the City by putting the grievants’ request for job reclassification on hold.  The City did not discriminate against the grievants.

 The Collective Bargaining Agreement has not been violated.  The grievance is denied in all respects.

 

                                                                                      AWARD

Based on the evidence and testimony presented, and for the reasons set forth above, the Union’s grievance is denied in all respects. 

DATED:  November 15, 2007                                       

______________________________

Phyllis Almenoff, Arbitrator

  

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