BEFORE IMPARTIAL ARBITRATOR MICHAEL ANTHONY MARR

STATE OF CALIFORNIA

In the Matter of the Arbitration Between THE ENGINEERS & ARCHITECTS ASSOCIATION, I.P.U.A., Local 800, AFL-CIO,                                     Union,             and LOS ANGELES POLICE DEPARTMENT,                                     Employer. _______________________________________________________________

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Los Angeles City Employee Relations Board, ARB-2069 Grievance of Melissa Popovic DECISION AND AWARD; CERTIFICATE OF SERVICE HEARING DATE: October 30, 2007

                                                   

MICHAEL ANTHONY MARR
Attorney, Arbitrator, & Mediator
111 North King Street
Suite # 314
Honolulu, Hawaii 96817
Telephone: (808) 599-5258
Facsimile:   (808) 599-1545
E-mail: MmarrADR@aol.com

DECISION AND AWARD

            The above-referenced matter came on for hearing before the impartial arbitrator on October 30, 2007 in Los Angeles, California. (Please refer to transcript of these proceedings, hereinafter sometimes referred to as “Tr.” or by a witness’s last name followed by the transcript page number(s)). The arbitrator was mutually selected by the parties using the rules and procedures of the Los Angeles City Employees Relations Board to render a final and binding decision concerning the above-referenced grievance. Both parties were represented by professional and competent counsel at the arbitration hearing. The Los Angeles Police Department was represented by Patricia Redwine, hereinafter sometimes referred to as “Employer” or the “Department.” The Engineers & Architects Association, I.P.U.A., Local 800, AFL-CIO, sometimes hereinafter referred to as the “Union” and Melissa Popovic, hereinafter sometimes referred to as the “Grievant” were represented by Adam N. Stern from the law offices of Levy, Stern and Floyd.  During the arbitration hearing, four (4) joint exhibits were received into evidence from the parties. Three (3) Department exhibits and one (1) Union Exhibit were also received into evidence. The Department called five (5) witnesses and the Union called two (2) witnesses.  Full opportunity was given to the parties to present evidence, examine and cross-examine witnesses and to present oral argument. Since the Memorandum of Understanding Number 21, sometimes hereinafter referred to as “MOU” (Joint Exhibit 1) was silent as to when closing briefs would be due after the arbitration hearing, the parties agreed that their post-hearing briefs would be due on January 21, 2008. The MOU is also silent as to when the arbitration decision and award are due. In light of the MOU’s silence on this matter, the arbitrator has elected to follow his general rule and submit his award and decision on or before 30 calendar days after the arbitrator receives submission of the closing briefs of the parties. The arbitrator received the closing briefs via e-mail from the parties on January 22, 2008. Therefore, the arbitrator’s decision and award was due on or before February 21, 2008.

            The arbitrator has reviewed the testimony and evidence presented during the arbitration hearing as well as reviewed the well-written and convincing briefs submitted by counsel. The arbitrator does not feel compelled to address all of the numerous arguments and issues raised by these professional advocates. Please note that this is not to be interpreted that the arbitrator has not read and reread the transcripts, briefs and numerous pages of exhibits and carefully considered all arguments of counsel. Rather, the arbitrator elects to address only those elements that have a significant impact on his decision-making process. The arbitrator, as a general rule will not comment on matters that he believes are irrelevant, superfluous, redundant, or rendered moot by the arbitrator’s decision.              

I.                   ISSUES.

                        The two primary stipulated issues to be resolved by the arbitrator are as follows:

(1)   Did the employer violate MOU number 21 when it required Grievant to adjust her work hours to respond to a job-related court subpoena?

(2)   If so, what is the appropriate remedy?

The parties agreed that the burden of proof is with the Union and that the burden is by a preponderance of the evidence. Tr. at 8:11-23.

II.  RELEVANT MOU PROVISIONS AND CODES.^[1]

Los Angeles City Administrative Code, Section 4.108 which is entitled “Hours of Work – FLSA Non-exempt Employees.” Section b provides as follows:

Changes to Work Schedules. Employees may be required to adjust their work schedules (change days off or working hours, except on the same day of the week as their regular 9/80 day off at the request of the employee’s appointing authority or the employee is prohibited unless it is intended for the employee to work additional hours (overtime) with the exception of during holiday weeks as provided for in Section 4.119G.

Section 4.113 of the Los Angeles City Administrative Code concerns overtime. It provides as follows:

Overtime – FLSA Non-exempt Employees.

(a)    Authority for Overtime. Compensation for overtime shall be for all hours worked in excess of 40 hours a workweek, including all absences with pay authorized by law. No employee shall work overtime without prior authorization of the chief administrative officer of the department or a supervisor delegated with responsibility by such officer. All hours worked by FLSA non-exempt employees shall be recorded on their time sheet. FLSA non-exempt employees may not work outside of scheduled working hours, or during unpaid meal periods without the prior approval of a supervisor consistent with department policy. Failure to secure prior approval may result in discipline. Working and not recording time is similarly prohibited.

Article 5.1 of the MOU provides as follows:

Work Schedules

Pursuant to the Fair Labor Standards Act (FLSA), employees shall have a fixed workweek that consists of a regular recurring period of 168 consecutive hours (seven 24-hour periods) which can begin and end on ay day of the week and at any time of the day. The designated workweek for an employee may be changed only if the change is intended to be permanent and not designed to evade overtime requirements of the FLSA, Management may assign employees to work a four/ten, five/forty, nine/eighty or other work schedule. The Union will be entitled to consult with Management on the matter prior to the proposed action. The Union will be entitled, upon receipt, to consult with Management if Management intends to deny a change in schedule to an employee. Management may require employees to change their work schedules (working hours or change days off, except the split day) within the same FLSA workweek, providing that the change is not arbitrary, capricious or discriminatory. In the event Management’s actions are shown to be arbitrary, capricious, or discriminatory before an arbitrator, the award of the arbitrator shall be to reverse the action of Management. However, the decision of the arbitrator shall be binding or advisory in accordance with Article 3.1. No employee shall be required to work a four/ten schedule against his or her will.

It is further agreed that Management shall retain the right to refuse an employee’s request to work a four/ten, nine/eighty or other work schedule, and to require the reversion to a five/forty work schedule, providing that the exercise of such right is not arbitrary, capricious, or discriminatory. In the event Management’s actions are shown to be arbitrary, capricious, or discriminatory before an arbitrator, the award of the arbitrator shall be to reverse the action of Management. However, the decision of the arbitrator shall be binding or advisory, in accordance with Article 3.1.

Employees on a nine/eighty modified schedule shall be designated a regular day off (also known as 9/80 day off) which shall remain fixed. Temporary changes to the designated 9/80 day off at the request of Management or the employee are prohibited unless it is intended for the employee to work additional hours (overtime).

Employees on a four/ten schedule shall work ten hours per day for a four day work week (or twelve hours per day for a three day work week in the Information Technology Agency only) exclusive of lunch periods. Employees shall be entitled to rest periods in accordance with the provisions of Article 4.4. Employees shall be compensated for 40 hours per week at the regular hourly rate for their class and pay grade.

EAA agrees that it is a management right to require employees who work on a four/ten, nine/eighty or three/twelve work schedule to work overtime on Saturday rather than on their day off which falls within the week. Employees who work on a schedule other than five/forty shall have their sick leave, vacation and holiday credits accrued at the same hourly rate as an employee on the five/forty schedule.

The City reserves the right to develop 26-week/1040 or 52-week/2080 hours’ work periods under the FLSA Section 7(b) [29 USC §207(b) (1) and (2)] during the term of this MOU for the purpose of increasing scheduling flexibility. Implementation of this work schedule is subject to agreement by the parties and certification of the Association as bona fide by the National Labor Relations Board (NLRB).

Article 6.6 of the MOU concerns court appearances. It provides in relevant part as follows:

Section I

Section 1 provides that “[w]hen an employee is required to appear in the Superior or Municipal Court in and for the County of Los Angeles, said employee shall be entitled to receive a minimum of one hour at 1 ½ times his/her regular rate of pay. Time spent in excess of the one-hour minimum guarantee shall also be at the rate of 1 ½ times the employee’s regular rate of pay, payable in six (6) minute increments. No compensation shall be paid for the first forty-five (45) minutes of the Court’s noon recess, provided, however, that no such compensation shall be allowed unless such employee is in actual attendance in court. Such compensation for court appearances may be in either time off or cash. Call back provisions are not applicable to court appearances.

Section II

The following court provisions shall apply to employees in the Police Department and Transportation Investigators (Code 4271) and Senior Transportation Investigators (Code 4273) in the Department of Transportation. These provisions apply only for the payment of overtime for court appearances outside of the normal duty hours of employees. Call back provisions are not applicable to court appearances.

1. Basic Compensation 

Police Department Employees

An employee, at the employee’s option, may report to court when subpoenaed or remain on call. If the employee elects to appear in court, the division supervisor must be notified, at the latest, one administrative day prior to the scheduled court appearance. If the employee wishes to remain on call, the employee, must be able to appear in court not more than one hour after being notified that the employee’s appearance is required in court. To appear in court more than an hour after having been notified will void the employee’s right to on-call compensation. An employee need not remain at home, but must be available for telephonic notification at a location where the supervisor knows the employee can be reached.

Transportation Department Employees

Department Management shall determine if an employee reports to court or remains on an on-call status. If the employee is on an on-call status, the employee must be able to appear in court not more than one hour after being notified that the employee’s appearance is required in court. To appear in court more than one hour after having been notified will void the employee’s right to on-call compensation. An employee need not remain at home, but must be available for telephonic notification at a location where the supervisor knows the employee can be reached.

1.      An off-duty employee shall receive a minimum of two (2) hours overtime compensation for any court day he/she is subpoenaed to be on call or required to appear.

2.      An off-duty employee shall receive hour-for-hour compensation for each additional hour or actual attendance in excess of the two (2) hour minimum provided in paragraph A(1) above, with the following noontime recess exceptions:

Length of Recess                                            Amount of Compensation
Forty-fire (45) minutes or less                         None
Forty-six (46) minutes or less                         All time over forty-six (46) minutes (in six [6] minute

                                                                        increments).

NOTE: An employee shall not receive court on-call overtime compensation and hour-for-hour overtime compensation for the same time period.

2. Multiple Cases

An off-duty employee who receives morning and afternoon subpoenas for separate cases on a court day shall receive overtime compensation as in paragraph A(1) above, for each case for a total of four (4) hours. In addition, he/she shall receive hour-for-hour overtime compensation for each additional hour of actual court attendance in excess of two (2) hours.

3. Exceptions to the Two-Hour Minimum

Management will attempt to adjust an employee’s shift to accommodate court appearances or on-call status commencing two hours or less before or after the employee’s regularly assigned shift begins or ends. If an employee’s shift cannot be adjusted, the employee will be compensated as follows:

1.      Court appearances or on-call status commencing two (2) hours or less before the employee’s regularly assigned shift begins. Compensation will be for actual time between the commencement of the court appearance or on-call and the beginning of the employees assigned shift with the same noon recess provisions at outlined in paragraph A (2) above.

2.      Court appearances commencing two (2) hours or less after the employee’s regularly assigned shift ends. Compensation will be for the actual time between the end of the employee’s assigned shift and the termination of the court appearance with the same noon recess provisions as outlined in paragraph A(2) above.

3.      Court appearances or on-call that begins during an employee’s regularly assigned shift. Compensation will be for the actual time between the end of the employee’s assigned shift and the termination of the appearance or on-call status with the same noon recess provisions as outlined in paragraph A (2) above.

(Bold scoring provided).

III.             BACKGROUND.

The Grievant first became employed with the City of Los Angeles in July of 1984 as a messenger clerk. Popovic at 16:18. She remained in that position for approximately three (3) years with the Library Department. Popovic at 16:16-21-25. She was subsequently employed as a part-time Clerk Typist with this same department. Popovic at 17: 2-5.  She later became employed by the Los Angeles Police Department as a Clerk Typist for the first three (3) years and was promoted to Senior Clerk Typist for the next three years. Popovic at 17:12-15. Thereafter she became employed by the Los Angeles Police Department in the position of Fingerprint Identification Expert for an additional three years. Popovic at 17:18-21. She subsequently was promoted to the position of Forensic Print Specialist and has remained in that position since 1999. Popovic at 18:1-2.

On April 24, 2006 she was assigned to the p.m. watch shift which begins at 3:00 p.m. and ends at 11:00 p.m. Popovic at 18:3-12. Ms. Popovic’s job responsibilities and duties include responding to subpoenas that require her to testify in court. Popovic at 18:13-17. She has always been subpoenaed to testify in the morning or afternoon as there is no night court. Popovic at 18:18-22.

Prior to April 24 she received a subpoena to testify in court on April 24th. Popovic at 18:23-25. Ms. Popovic’s Department has a “Subpoena Coordinator” who is usually a “lead person” or a Senior Forensic Print Specialist who gives the subpoenas to employees in her division. Popovic at 19:4-5. The employees sign for the subpoenas, take them to court with them, and return them at court. Popovic at 19:6-7. She does not have to inform anybody else that she has been subpoenaed other than the Subpoena Coordinator. Popovic at 19:8-11.

On April 23 Grievant worked her regular shift from 3:00 p.m. to 11:00 p.m. Popovic at 19:15-17.  On April 23 nobody informed her that her schedule would change the following day. Popovic at 19:18-21. Prior to April 24 nobody said anything about her subpoena and how it would affect her work schedule and work hours for April 24. Popovic at 19:22-25.

On the morning of April 24 Grievant went into her office building to check out evidence that she needed to use in court and to check out a City vehicle. Popovic at 20-1-9. She signed in at 8:12 a.m. Popovic at 27:9. She then proceeded to the Van Nuys station to pick up another employee who was also subpoenaed and who also worked on the same case with her. Popovic at 20:10-19. The Grievant was running a few minutes late for court so she called the District Attorney to let them know that she and her co-worker would be a few minutes late and was informed that they would not be needed as the case was continued. Popovic at 20:20-25; 21:1-3. She returned her friend to the Van Nuys station, returned the evidence and the City vehicle, did some paperwork, and left work by signing out to attend to her personal business a little after 11:12 a.m. Popovic at 21:4-25; 27:10. At that time she was still scheduled for her 3:00 p.m. to 11:00 p.m. shift. Popovic at 21:19-21.

Although Grievant’s shift did not start until 3:00 p.m., since she was in the downtown area, she returned to work at 1:00 p.m. Popovic at 27:25-28:1. Grievant testified that the Department knew that she had court that morning because they gave her the subpoena. Popovic at 28:2-5. The subpoena was given to her either by a “lead” or by a supervisor. Popovic at 28:12-13.

Grievant testified that when she arrived for work early at 1:00 p.m. on April 24, nobody told her to go home because she was early. Popovic at 37:21-25. Nobody said anything to her about her showing up for work at 1:00 p.m. Popovic at 38:9-10.^[2] She submitted an overtime slip and documentation supporting a request for overtime. Popovic at 22:1-7; 27:12-18.

The Grievant testified that she believed that she was entitled to overtime pay because she worked outside her regularly scheduled shift and nobody changed her shift. Popovic at 22:8-11. She submitted her overtime application to Senior Forensic Print Specialist John Green who was assigned to the PM watch. Popovic at 22:12-15. He is the person that overtime requests are submitted to. Popovic at 22:14-17. Mr. Green informed her that he was not going to accept the overtime slip and instructed her to see the officer in charge of the unit, Diane Castro. Popovic at 22:19-25. Grievant went to see Officer Castro and was informed by her that she was not going to accept the overtime slip either. Popovic at 23:1-5. Officer Castro and Mr. Green had a conversation and decided that she would be ordered to go home after five hours rather than being permitted to work her entire shift. Popovic at 23:6-13. The Grievant was also called to testify on May 3 and May 4, 2006 after being subpoenaed to court to testify. After submitting overtime requests for these dates, her request for overtime was denied as it had been on April 24, 2006. The Grievant completed the appropriate procedural steps of the grievance process and each step was denied, the last by City Administrative Officer Carolyn Cooper.^[3] These denials eventually led to this matter being set for a grievance hearing before the arbitrator.

The Grievant testified that she is familiar with the Latent Print Procedures for Court Subpoenas and Testimony. Popovic at 28:14-16. The Grievant also testified that she is aware of the specific procedures set therein on how to report to court. Popovic at 28:16-19. The procedures provide that if the Grievant has a “morning subpoena” to come in at 7:00 a.m and if she has an afternoon subpoena, to come in at 1:30 a.m. Popovic at 30:14-16.  According to procedure, Grievant was supposed to report for work at 7:00 a.m. Popovic at 30:22.

IV.       CONCISE POSITION OF THE DEPARTMENT.

1. The Department argues that its policy of requiring employees, in the Latent Print      Unit such as the Grievant, who hold the position of Forensic Print Specialist, to adjust their work schedules when responding to job-related court subpoenas does not violate the MOU Number 21 because its actions are based upon safety issues related to employees working an excessive number of hours. Also, Forensic Print Specialists need to concentrate and pay attention to fine detail in their work, whether in or out of court.
2. The Department is not violating the Federal Labor Standards Act by requiring   employees to make changes in their schedules to accommodate their obligations to appear in court pursuant to court-ordered subpoenas.
3. The Department did not violate MOU #21, Article 5.1 by requiring employees to change their work schedules within the same FLSA workweek as the Department’s actions are not arbitrary, capricious or discriminatory.
4. The Department’s actions against the Grievant are not discriminatory.
5. The Federal Labor Standards Act and MOU #21 permit the Department to adjust the work schedule of Employee’s provided the adjustment does not violate the FLSA and the Department has not violated said law.

V.        CONCISE POSITION OF THE UNION.

1. The Department violated Section 5.1 of MOU #21 when it cancelled the Grievant’s Regular Work Schedule for the Sole Purpose of Avoiding Overtime.
2. The Latent Print Procedures should be disregarded as null and void.
3. The Latent Print Procedures violate Section 5.1’s prohibition against practices that are designed solely to circumvent overtime.
4. The Latent Print Procedures violate section 5.1’s prohibition against arbitrary and discriminatory practices.
5. No competent evidence was produced to authenticate the Latent Print Procedures Policy as an established and binding practice.
6. The Latent Print Procedures were implemented without notice to the union or an opportunity to bargain.
7. Arbitrator Steinberg’s reasoning in Arbitration 2531 should be reconsidered.
8. The Grievant should be made whole by being awarded the overtime that she would have worked but for the change to her schedule that occurred on April 24 and May 3 and 4, 2006.

VI.   DID THE EMPLOYER VIOLATE MOU NUMBER 21 WHEN IT REQUIRED GRIEVANT TO ADJUST HER WORK HOURS TO RESPOND TO A JOB-RELATED COURT SUBPOENA?

Article 5.1 of the MOU governs work schedules. Article 6.6 governs court appearances and overtime payments and how they affect Article 5.1 These two sections of the MOU are not inconsistent with one another. Articles 5.1 and 6.6 work in concert to efficiently and effectively regulate and administer overtime requests.

Article 6.6 sets forth the general rule that provides that employees who are required to appear in court outside of their normal duty hours are entitled to pay at the rate of 1 ½ times their regular rate of pay per hour. However, this Article of the MOU is limited by Article 5.1 of the MOU, which gives the Department the right to attempt to adjust an employee’s shift to accommodate court appearances.

In order for the Union to prevail, it must show that the Department violated Memorandum of Understanding Number 21 on one of two bases. The first basis is that the Department changed the Grievant’s workweek when it required Grievant to adjust her working hours to respond to a job-related subpoena because the change was intended to be permanent and was designed for the purpose of evading the overtime requirements of the Fair Labor Standards Act. The second basis is that the Department changed the Grievant’s work schedule and the change was arbitrary, capricious, and discriminatory.

The first basis does not apply to the case of the Grievant. The Union clearly did not show that when the Department required the Grievant to adjust her work hours to respond to a job-related subpoena, that the designated workweek changes concerning April 24 and May 3 and May 4, 2006, were intended to be permanent and also designed to evade overtime requirements of the FLSA.

The Union has argued that the sole reason, or at least the primary reason, for requiring Forensic Print Specialists to change their schedules to respond to court subpoenas is to prevent paying overtime. Commander Johnson did testify that overtime payment was an element. Johnson at 76:6. Commander Johnson’s position is in large part administrative. An administrator would be neglecting his duty to the tax payers of the City and County of Los Angeles if he did not consider, to some degree, the expenditure of tax dollars in every policy decision that he makes. Although an “element,” the arbitrator believes that it is a very insignificant element.  The primary and compelling reason for the policy is not to evade the payment of overtime, but rather the fact that Forensic Print Specialists must be sharp, articulate and alert while in court as well as while at work while in the office. The Grievant’s job requires attention to fine detail, whether she is in court or at her office, much more so than Police Photographers. The arbitrator finds that the Department has not violated the Federal Labor Standards Act by changing the Grievant’s work schedule for the purpose of having her respond to a job-related court subpoena.  Also, the Department did not violate Memorandum of Understanding Number 21 on the first basis as noted above.

The second basis is that the Union may establish that the Department violated Memorandum of Understanding Number 21 is by showing that the Department, by adjusting the Grievant’s work hours for her to respond to a job-related court subpoena, acted arbitrarily, capriciously, or discriminatorily.

Changing the Grievant’s workweek was not arbitrary, capricious or discriminatory because of the following totality of circumstances:

1. article 5.1 of the MOU permits the Department to change the Grievant’s work schedule;
2. section 4.108 of the Los Angeles City Administrative Code provides that employees may have their work schedules adjusted within the same FLSA workweek;
3. article 5.1 of the MOU and section 4.108 of the Los Angeles City Administrative Code are not inconsistent with one another;
4. the workweek schedule change was done to serve a legitimate business function of the Department, to enable her to testify pursuant to a court-ordered subpoena;
5. given the fact that Grievant must testify in court as a Forensic Print Specialist more than most other Los Angeles Police Department Employees, her work schedule must be consistent and flexible for the operational needs of the Los Angeles Police Department;
6. since Grievant has an off-duty shift, her workweek schedule must be flexible so that she can respond to court-ordered subpoenas;
7. the Grievant’s work requires very fine-attention tasks which require a significant amount of concentration such as fingerprint comparisons and attempts to identify prints. Long work periods tend to deteriorate this ability, Johnson at 66:5-19;                                  

Briggs at 98:15-25; 99-1-10.

8. while attention to detail is extra-ordinarily important while Grievant testifies in court, it is equally important when she is not in court. Clearly, a mistake made on the job outside of the court will have an impact on her testimony while she is in court. For example, a good defense attorney or expert witness that is hired by a defense attorney to review her work product on latent prints should be able to spot any latent print errors or discrepancies which were made not in court, but on the job outside of court.
9. the rationale set forth in Arbitrator Steinberg’s arbitration decision (Joint Exhibit 4), indicates that Forensic Print Specialists need to be alert and articulate when they provide information to the court as well as undergo cross-examination.
10. the Los Angeles Police Department does not want to have Latent Print Specialists testify in court all day and then have them come to work for their entire regular shift which will require significant amounts of concentration to fine-attention tasks such as fingerprint identifications and comparisons. Johnson at 66:8-19.
11. Commander Johnson testified that he is certain that there have been situations where an employee has been allowed to work overtime after responding to a job-related subpoena. Johnson at 73:1-6. However, this would appear to be a management prerogative, as long as it was not arbitrary, capricious, and discriminatory. Several factors could result in such a decision to permit or even request that an employee work overtime. They include the possibility that the employee is the only person that is able to work on a specific case and there are exigent circumstances for completing the work as soon as possible, there could be a shortage of employees in the bargaining unit on a given day, the work to be completed may be, more or less, administrative rather than fine detail work, or

the employee may be taking a long leave of absence and therefore must complete the work by a given deadline. The arbitrator should not second guess the Department’s reasons for allowing overtime, unless the reasons are arbitrary, capricious and discriminatory.

12. Memorandum of Understanding Number 21, as well as the testimony of the witnesses does not provide that an employee has a right to overtime when the employee responds to a job-related subpoena. In fact, the evidence before the arbitrator does not indicate that an employee has a right to overtime.

The Department has argued that another reason for requiring that employees of the Latent Print Unit change their shift when responding to a court subpoena is because of employee safety. Johnson at 66:20-21; Briggs at 98:17; Cooper at 116:6-15.  While the arbitrator believes that its concern is genuine, given the numerous times that Grievant and other employees of the Los Angeles Police have worked more than 8 hours per day, this factor cannot be used to justify changing the Grievant’s work schedule when the employee must respond to a work-related subpoena.

            The Union also argues that since photographers are not required to change their work schedules when responding to job-related subpoenas and latent print specialists are subject to a work-schedule change, the latent print specialists are being arbitrarily, capriciously, and discriminatorily treated. With the utmost respect for the Union, the arbitrator disagrees for the following reasons:

1.      While police photographers and latent print specialists are represented by the same Union, are employed by the same employer, the Los Angeles Police Department, and are covered by MOU Number # 21, they have different job classifications, job responsibilities and duties. Popovic at 24:2-8. In addition, their work concerns different specialties. Johnson at 63:22.

2.      There is no evidence that persons in the same classification as the Grievant are being treated differently when required to respond to a court-ordered subpoena. If Grievant was being treated differently from the same persons in her classification, i.e., she was the only forensic print specialist who had to adjust her schedule due to a job-related subpoena, the argument for discrimination would be substantially stronger.

3.      Everyone, from criminalists, polygraph people, and photographers, also have to pay fine attention to their work because they’re dealing with criminal matters, but to varying degrees. Johnson at 71:19. As noted above, the work done by Latent Print Specialists is intricate and detailed. This is not to say that the work done by Police Photographers is not. However, the clear reasonable inferences from the testimony of the witnesses is that it is much more so for Latent Print Specialists than it is for Police Photographers.

4.      Forensic Print Specialists are in court “almost everyday” while photographers testify far less frequently. Johnson at 76:16-25. Photographers rarely go to court. Johnson at 77:1-9. The testimony commitments of photographers are less than for those of latent prints. Johnson at 68:14-16.

5.      Most of the overtime for photographers concerns situations where they are on extended watch regarding “long calls” and this is different type of overtime situation. Johnson at 77:5-9.

6.      The Los Angeles Police Department does not want to have Latent Print Specialists testify in court all day and then have them come to work for their regular shift which will require significant amounts of concentration to fine-attention tasks such as fingerprint identifications and comparisons. Johnson at 66:8-19. Assistant Commanding Officer Colleen Briggs expressed the same major concerns and necessity to have the policy as Commander Johnson did, i.e., safety, fatigue, technical tasks, and efficiency. Briggs at 98:15-25; 99-1-10.

7.      The Department employs one or two Firearms Examiners who work “off-watch.” Johnson at 77:24-25; 78-25. They are also subpoenaed to court to testify. Johnson at 78:16-20. They generally voluntarily flex their schedules. Johnson at 78:20-25. If the Firearms Examiner decided that he/she did not want to flex their schedule, the Department could reassign them to a different shift. Johnson at 79:4-5. However, there are certain times when overtime has to be paid. Johnson at 79:9-10. Firearms Examiners also have to pay fine attention to their work. Johnson at 70:16-18.

            The Department has not acted arbitrarily, capriciously or discriminatorily toward the Grievant. It has reasonable and legitimate business reasons for treating the classifications of Latent Print Specialists and Police Photographer differently as noted above. The Department has not violated Memorandum of Understanding Number 21 on this second basis.       

VII.  ARBITRATOR STEINBERG’S ARBITRATION DECISION REGARDING ARB # 2531

            The arbitrator has on a few occasions refused to give precedence and deference to another arbitrator’s decision. However, those situations have been extremely rare and involve situations where the decisions of the other arbitrator were clearly wrong regarding applicable law.

            The Union has argued that Arbitrator Steinberg’s decision should be reconsidered and that it is distinguishable from the case before the arbitrator. While the arbitrator believes that the factual situation presented to Arbitrator Steinberg is different from the case before the arbitrator and can be factually distinguishable, the foundation and essence of Arbitrator Steinberg’s logic and reasoning is correct. Therefore, the arbitrator respectfully declines to reconsider Arbitrator Steinberg’s reasoning and decision.

VIII.  DEPARTMENT EXHIBIT 1.

Department Exhibit 1, the Latent Print Procedures for Court Subponenas/Testimony was marked for identification but not received into evidence given the arbitrator’s concerns regarding authentication. Mr. Adam Stern, counsel for the union was exceptionally articulate and very effective and persuasive in convincing the arbitrator to refuse to admit Department Exhibit 1 into evidence.  

          Commander Johnson testified that he is familiar with the Latent Print Unit Procedures for Court Subpoenas, Department Exhibit 1. Johnson at 52:22-25; 60:1-4. Under this policy, a person who is served with a subpoena has to adjust their shift assignment so that they can respond and be in court. Johnson at 60:5-10. The policy has been in effect prior to his becoming Commanding Officer for the Division in December, 2002. Johnson at 58:7-11; 60:11-15. ^[4] However, Commander Johnson has never seen the procedures in writing. Johnson at 61:10.

            Ms. Michele Kestler^[5] is also familiar with the Latent Print Unit’s Procedures for Court Subpoenas/Testimony. Kestler at 82:2-14. She recalls seeing them in writing but does not recall exactly what they read. Kestler at 82:16-17.  Diana Castro who is retired wrote them. Kestler at 82:19-21. Department’s Exhibit 1 appears to be a Revised Copy but also appears to be the same one. Kestler at 83:24-25; 84:1-3. Page 2, paragraph 5, has the same wording as the one she had previously seen back in 2003, 2005. Kestler at 84:4-5. The requirements listed in paragraph 5 appear to be the same as when she was in charge of the Unit. Kestler at 84:10-14; 23. The procedures were used by Ms. Kestler and Ms. Castro, but she cannot attest that the wording is exactly the same, word for word. Kestler at 88:3-11.  In addition, she is not 100% sure that she has seen Department Exhibit 1. Kestler at 82:11-17; 86:15-21; 87-16-21.

However, after reviewing the transcripts and exhibits, the arbitrator is of the opinion that since the grievance before him is an arbitration hearing, rather than a trial where strict rules of evidence and procedure apply, the arbitrator should have permitted Department Exhibit 1, page 2, paragraph 5, into evidence for the limited purpose of showing that such a policy existed, but not necessarily that the Union or the Grievant were bound by Department Exhibit 1. This is particularly provident in light of the Grievant’s admission that she was familiar with Department Exhibit 1 and the following exchange between Ms. Redwine and Assistant Commander Briggs^[6]:

Q   Are you familiar with the Latent Print Unit's Procedures for Court      

      Subpoenas/Testimony?

A   I have -- I have read and am generally familiar with their procedure for processing of subpoenas and the obligation of employees, established procedures.  It was a document that was -- the document I have is dated Revised April of '05.

Q.  Now, in the document, it lists procedures for the requirements of an employee when they are subpoenaed to court. Do you recall those procedures?

A. Correct, if you I don’t leave any out. If I do, it’s – when an employee receives a subpoena, they sign for it, first off. They then need to check out the case file, review the case file to prepare for court. They are required to contact either the City Attorney, work with the City Attorney or the District Attorney, stay in touch with whoever’s handling that case to ensure that they are current in their knowledge of the status of the case and whether they’re remaining on call or if they’re on – or if their “be there” status remains the same.

When they’re at court, obviously they testify. They will make notations on the case package if there’s any evidence from the case package they have that’s been admitted into evidence and isn’t coming back with the case package, so that information is – the evidence is tracked. You know, they bring the case package back and then return that to file, notify their supervisor of their status, disposition of the case.

Q.  Okay. As far as the Forensic Print Specialists, when they’re off-watch, do you recall what the requirements are?

A.  If they’re off watch and they have a morning “be there” court, they’re – the procedure dictates that they report to work at 7:00 a.m. in the morning and that is a normal workday for them. This is assuming the subpoena has been served in advance, that it’s not – did you – I’m sorry. Did you ask me about day off or just regular?

Q. For off-watch.

A.  Just regular watch and working. If the subpoena comes in advance, the employee is expected to work day watch on the day of the court – scheduled court appearance; and if it’s morning court appearance, then they report to work at 7:00 o’clock first, before going to court; and if it’s an afternoon court appearance, I believe they report to work at noon excuse me, and that shift would end at 8:00 p.m.

Q. Would you look at that and review it and just let me know if that’s the – if those are the procedures that you remember from when you were in charge.

A. There it is. Yes. This is it. This is the document I’ve seen (indicating) (Department Exhibit 1).

Briggs at 94:15-96:22.

            Further exchange between Ms. Redwine and Assistant Commander Briggs

revealed significant information as follows:

A.    I was told that this needed to be in writing.  That was the last and third reason that I was given or information that was related to me, so that it would ensure that it was uniformly applied, that there was consistent application, and it was clear beyond just verbal delivery and it just codified what the procedure was…

    

            Q.   Okay.  I spoke with the Officer in Charge of the unit and she personally told                                        

                   me that this policy was in place, for the most part, when she arrived in the                                    

                   unit in 1987, but it was not in writing, because I had asked about the revision

                   date on the bottom of this form. I wanted to see the original document.  That's

                   what prompted my question. And when I asked who prepared the document,                 

                   she said she did, and that was Diana Castro, who is the retired Officer in

                   Charge of the Latent Print Unit… I asked about that and -- specifically

                   I asked because I wanted to see the original, and the revised date was in her                                   

                   words "to reflect some minor modifications of what was generally accepted" I

                   think as -- the oral policy or the oral procedure.  So I cannot tell you what

                   those minor modifications were. They didn't relate to number 5. I don't

                   know. 

Briggs at 99:19-103:5.

            In addition, in the closing briefs of both the Department and particularly the Union, there are consistent references to Department Exhibit 1. The Department refers to Department Exhibit 1 as “court subpoena procedures,” “Latent Print Unit Procedures,” “procedure use in the Latent Print Unit,” and “procedures,” while the Union refers to it as “Latent Print Procedures” and specifically requests relief.

            Department Exhibit 1, page 2, paragraph 5, appears to be a core issue in this grievance. Paragraph 5 provides as follows:

Testimony of Off-Watch FPSs:

When required to “Be in Court”, the FPS(s) will adjust their hours of work.

• If needed in court at 0830 --- FPS will work 0700 – 1530

 • If needed in court at 1330--- FPS will work 1200 – 2000

• All FPSs scheduled to “Be in Court” on their regularly scheduled Day Off must report to work for court. The FPS(s) will have the option of working a full 8-hour day and change their Day Off to another day OR report to work, go to court, then submit an overtime slip, and return home.

            Given the foregoing, the arbitrator will not receive Employer’s Exhibit 1 into evidence because receiving same into evidence after the completion of the arbitration hearing and the submission of closing briefs would be unfair to the parties. However, the arbitrator has decided to address Employer Exhibit 1, page 2, paragraph 5, for the sole purpose of providing a concise example of the “Latent Print Procedures” that the Union requests that the arbitrator declare “null and void.”

IX.             WERE THE LATENT PRINT PROCEDURES IMPLEMENTED WITHOUT  NOTICE TO THE UNION AND WITHOUT  AN OPPORTUNITY TO BARGAIN?

The California Government Code, Sections 3500-3511,^[7] often referred to as the “Meyers-Milias-Brown Act” governs the relationship between city and county public employers, their employees, and local public employee organizations. California Government Code Section 3505 provides as follows:

            The governing body public agency, or such boards, commissions, Administrative officers or other representatives as may be properly designated by law or by such governing body, shall meet and confer in good faith regarding wages, hours, and other terms and conditions of employment with representatives of such recognized employee organizations, as defined is subdivision (b) of Section 3501, and shall consider fully such presentations as are made by the employee organization on behalf of its members prior to arriving at a determination of policy or course of action.

“Meet and confer in good faith” means that a public agency, or such representatives as it may designate, and representatives of recognized employee organizations, shall have the mutual obligation personally to meet and confer promptly upon request by either party and continue for a reasonable period of time in order to exchange freely information, opinions, and proposals, and to endeavor to reach agreement on matters within the scope of representation prior to the adoption by the public agency of its final budget for the ensuing year. The process should include adequate time for the resolution of impasses where specific procedures for such resolution are contained in local rule, regulation, or ordinance, or when such procedures are utilized by mutual consent.

However, the obligation to confer in good faith regarding wages, hours and other conditions of employment is not absolute. California Government Code Section 3504 provides as follows:

The scope of representation shall include all matters relating to employment conditions and employer-employee relations, including, but not limited to, wages, hours, and other terms and conditions of employment, except, however, that he scope of representation shall not include consideration of the merits, necessity, or organization of any service or activity provided by law or executive order.

            There is therefore a clear difference between the Department’s fundamental managerial or policy decision and the implementation of that decision. This provision of the California Code has been substantially litigated. The most recent reported case issued by the California Supreme Court case in this area is Claremont Police Officers Association v. City of Claremont, 39 Cal.4^th 623 (2006) hereinafter referred to as Claremont.

            In Claremont, the City of Claremont implemented a “Vehicle Stop Collection Data Study” (Study) to determine if officers were engaged in racial profiling. The Study required police officers to complete a form whenever a police officer stopped a vehicle. The form included questions regarding the driver’s “perceived race/ethnicity” and the officer’s prior knowledge of the driver’s race/ethnicity. The form evidently took about 2 minutes to complete. The California Supreme Court concluded that the Study was not subject to the “meet and confer” provision of California Government Code Section 3505. In so deciding, the court stated:

In summary, we apply a three-part inquiry. First we ask whether the management action has a ‘significant and adverse impact on the wages, hours, or working conditions of the bargaining-unit employees.’ (Building Material, supra, 41 Dal.34 at p. 660.) If not, there is no duty to confer. (See § 3504; also ante, at p. 7.) Second, we ask whether the significant and adverse effect arises from the implementation of a fundamental managerial or policy decision. If not, then as in Building Material, the meet-and-confer requirement applies. Third, if both factors are present – if an action taken to implant a fundamental managerial or policy decision has a significant and adverse effect on the wages, hours, and working conditions of the employees – we apply a balancing test. The action ‘is within the scope of representation only if the employer’s need for unencumbered decision-making in managing its operations is outweighed by the benefit to employer-employee relations of bargaining about the action in question. (Building Material, supra, 41 Cal.3d at p. 660). In balancing the interests to determine whether the parties must meet and confer over a certain matter (§ 3505), a court may also consider whether the “transactional cost of the bargaining process outweighs its value.” (Social Services Union, supra, 82 Cal.App.3d at p. 505.)

The court found that the Study did not have a significant and adverse impact on the wages, hours, or working conditions of the bargaining-unit employees. Therefore, the “meet and confer” requirement of California Government Code Section 3505 did not apply to the Study.

Mr. Benjamin Abraham Pezzillo testified that he is employed as a Union Representative on behalf of the Engineers and Architects Association. Pezzillo at 128:17-19. He reviewed the Union’s books and records to determine whether or not the Union had ever received notice of a proposed change to overtime rules and court subpoena/testimony rules and found no such notice to the Union.^[8] Pezzillo at 130:7-10.

In In the Matter of the Arbitration between the City of Los Angeles Police Department and the Engineers and Architects Association, Union, ARB 2531, Grievance of Frank Giles, decided by Arbitrator Robert D. Steinberg on February 7, 2007, Arbitrator Steinberg indicated that the policy of requiring Forensic Print Specialists to adjust their work hours to testify pursuant to a job-related court subpoena has been in effect for some 32 years… and is “historic.”  Tr. at 4;7 of Arbitrator Steinberg’s decision. Given this 32-year policy history, the arbitrator is reluctant to consider an unlawful unilateral change in the terms and conditions of the employment on the record of this grievance. At the very least, testimony from collective bargaining agreement negotiators and those familiar with the past practice and history of the latent print procedures would be necessary.  

The numerous witnesses called to testify by the Union clearly did not establish that the Department’s actions constituted unlawful unilateral action. Also, the fact that Mr. Pezzillo did not find anything during his search does not mean that a policy was not mutually agreed upon by the parties at some point in time during the last 32 years. Mr. Pezzillo was recently hired on June 30, 2007. There is no testimony in the record concerning the bargaining history of the parties concerning the Department Exhibit 1 that was allegedly unilaterally implemented by the Department. Given the fact that the subpoena policy relating to Forensic Print Specialists has been in effect for approximately 32 years, the arbitrator is reluctant to apply the three inquiries set forth in Claremont on the record of the grievance before the arbitrator.

It is significant to note that the step grievance forms (Joint Exhibits 2 and 3) that were received into evidence on behalf of the Grievant did not identify unilateral action as an issue. The arbitrator would only feel comfortable in addressing this issue if the Department had advance notice of this being an issue prior to the arbitration hearing. The Department should be given time to prepare and defend against a unilateral action argument. Making unilateral action an issue on the day of arbitration is unfair surprise to the Department.

Lastly, it would be necessary for the Union to argue and show that the Recognition Provision of MOU #21 or some other provision of MOU #21 gave the arbitrator authority to consider unilateral action. As the parties know, the arbitrator is bound the four corners of MOU #21. The arbitrator has considered external law, particularly in federal and public sector grievances. MOU’s often expressly provide or infer that consideration of external law is appropriate, particularly if an MOU refers to external law such as the Federal Labor Standards Act. The arbitrator has only received what was offered into evidence, specifically portions of MOU #21. He is without knowledge as to the entire MOU as same was not provided and received into evidence. Tr. at 29:1-30:19.

X.                CONCLUSION

            Based upon the foregoing in sections I through IX above, the arbitrator finds that on the record of this grievance, the Department has not violated the Memorandum of Understanding Number 21 when it required Grievant to adjust her work hours to respond to a job-related court subpoena. The arbitrator also finds that based upon the record of this grievance, he is unable to find that “Latent Print Procedures” were adopted without notice to the Union and without an opportunity to bargain.

XI.       DECISION AND AWARD.

            The Grievance is respectfully denied.  As per the request of the parties, the arbitrator shall retain jurisdiction for 90 days from the date set forth below.

                        DATED:  Honolulu, Hawaii, February 6, 2008.

                                                ________________________________
                                                MICHAEL ANTHONY MARR
                                               Attorney, Arbitrator, and Mediator

 

 

 

STATE OF HAWAII                                   )
                                                                     )
CITY AND COUNTY OF HONOLULU     )

On this 6^th day of February, 2008, before me personally appeared Michael Anthony Marr, to me known to be the person described in and who executed the foregoing “Decision and Award” and acknowledged that he executed same as his free act and deed.                                              

_________________________________
Notary Public, State of Hawaii
My Commission expires on May 2, 2008.

                                               

                                                CERTIFICATE OF SERVICE

            I do hereby certify that a copy of the foregoing “Award and Decision” was duly mailed, postage prepaid on February 8, 2008 to the following persons at the addresses listed below:

Adam N. Stern, Esq.                                  Terry S. Hara, Commander
Rudy Balderama, Esq.                              Patricia Redwine, Senior Personnel Analyst
Levy, Stern & Ford                                    Employee Relations Group
3660 Wilshire Blvd.                                   Los Angeles Police Department
Suite #600                                                 Room 521, Parker Center
Los Angeles, CA 90010                           Los Angeles, CA 90012

            DATED: Honolulu, Hawaii, or less.

                                                _____________________________
                                                MICHAEL ANTHONY MARR
                                                Impartial Arbitrator