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National Arbitration Center
Title: Sacramento
Area Fire Fighters and City of Sacramento
INTRODUCTION
This arbitration arises
from two grievances filed by Sacramento Area Fire Fighters Local 522, AFL-CIO,
on behalf of itself and Jaymes Butler, hereinafter referred to as the
Grievant, a firefighter, whose classification is covered by the terms and
conditions of the Collective Bargaining Agreement (CBA), in full force and
effect between the City of Sacramento, hereinafter referred to
as the City, and Sacramento Area Fire Fighters Local 522, AFL-CIO, hereinafter
referred to as the Union. The subject of this arbitration is the May 30, 2003
grievances (FD-2-03-10/3157) alleging a violation of Civil Service Board
Testing Procedures and (FD-2-03-11/3158)
Civil Service Board Testing Appeal Procedure. The Grievant alleges that the
City improperly failed to credit his performance on the examination for Fire
Captain, specifically, Emergency Problem 2 in which he received a score of
“Fail”. The Grievant
contends that a score of “Fail”
has a numerical value of 60 and it should be added to his
final composite score of 69.33%. Grievance
(FD-2-03-11/3158) asserts that
the Grievant was not able to comply with the City’s 15 day appellate
requirement to appeal testing procedures inasmuch that the essence of the
grievances was not apparent until on or about May 30, 2003. .
APPEARANCESON BEHALF OF SACRAMENTO AREA FIRE FIGHTERS LOCAL 522 AFL-CIO JAYMES BUTLER, GRIEVANT
ON BEHALF OF CITY OF SACRAMENTO
ANGELA M. CASAGRANDA, Esq. ISSUE
The parties did agree at hearing that the issue
before the Arbitrator is whether or not the City is required to grant credit to
the Grievant for a score of
60 on Emergency Scenario 2 of the Captain’s Examination. There was
disagreement over whether or not to credit seniority points to the Grievant’s
final score of 66.33%, and
when these points should be added
and credited. Underlying the issue of crediting seniority points is whether or
not they are dependent on achieving a minimum final composite passing score of
70. In the Union’s closing brief
it frames the issue of awarding of seniority credits to be contingent upon a
candidate’s successful passage of the examination. (Union Closing brief 7; 3;
4). RELEVANT CONTRACT LANGUAGE
|
|
TEST |
POINTS |
% |
WEIGHTED % |
POINTS |
|
Written Test (items in Test: 150) |
112 |
74.67 |
25% |
18.667 |
|
Section
2, Assessment Center/Leadership
Appraisal |
Average Score |
|
|
|
|
Writing Problem |
90 |
|
5% |
4.500 |
|
Emergency Scenario 1 |
90 |
|
10% |
9.000 |
|
Emergency Scenario 2 |
96.67 |
|
10% |
9.667 |
|
Emergency Problem 2 |
0.00 |
|
20% |
0.00 |
|
Supervision Problem |
96.67 |
|
15% |
14.500 |
|
Assessment Qualifications |
86.67 |
|
15% |
13.000 |
|
Total Section 2 |
|
|
|
50.667 |
|
TOTAL SCORE |
|
|
|
69.333 |
On November 15, 2002 the City mailed to the
Grievant a “Speed Memo” informing him that he was not successful in the
“Fire Captain testing process”, Exam #05020-02”.
(Ex. F). It further advised
that in January of 2003, a detailed “report card” would be provided and,
after review at his election, a feedback session with Chief Leo Baustain would
be scheduled. Printed on the Speed
Memo is Civil Service Rule 4.10 (c) - Grounds
for appeal of disqualification, inclusive of the notice that an appeal must be
filed within 15 days of the mailing date of November 15, 2002. (See footnote #2)
The Grievant
testified that upon receipt of the notice of disqualification he attempted to
obtain specific details as to why he failed. In his effort to discover the
specific details the Grievant made telephone calls to Chief Baustain and
Personnel Analyst
Gerriee Giffin, both
of whom were unable to provide the
information sought.
On or about April 23rd,
2003 the Grievant met with Chief Baustain for a feedback session.
Although the content of the discussion between Chief Baustain and the
Grievant is in controversy, the fact of its occurrence is not.
On May 30, 2003, the Grievant filed two
grievances asserting that in scoring of Emergency Problem 2 the City failed to
credit his score of 0% to the equivalent numerical value of 60 and add seniority
points to the final score.
POSITION OF SACRAMENTO AREA FIRE FIGHTERS LOCAL 522 AFL-CIO ON BEHALF OF ITSELF AND THE GRIEVANT
The Union
argues that the grievance is arbitrable and timely pursuant
Article 5.2 of the CBA and Civil Service Rule 1.6.
The Union interprets Rule 1.6 to be applicable to the circumstances of
this grievance, since the timelines
imposed by Rule 4
- Appeal of Disqualification - do not apply to the essence of the grievances.
Specifically, these grievances challenge the metrology of scoring, not
the substance, propriety, scope, or fairness
of the examination. Because the
examination is weighted by its component parts,
and since a candidate was not disqualified automatically by reason of an individual component score received, the reasons for
disqualification were not known to
the Grievant for a substantial period of time after his posted final score. The
City did not provide candidate’s individual numerical scores for all of the
component elements of the examination within the 15-day appeal mechanism
provided in Civil Service Rule 4. This effectively precluded the Grievant from
filing a timely appeal under the provisions of Civil Service Rule 4.
The Grievant did not become aware of the reasons for his disqualification
until on or about May 30, 2003.
The remedy
requested is to adjust the
Grievant’s cumulative score to
reflect the sixty (60) points he received on Emergency Problem 2, and seniority
points be added as provided in Rule 4.9 (b).
If these sixty points are awarded it is requested
that the Grievant be placed on the eligible list in accordance with his
score and that such placement not affect any certification or appointments made.
A prospective remedy is sought to prevent this set of events from occurring in
future examinations. The Union argues that the City should be required to
correct the examinations in a timely fashion so as to make possible
compliance with Rule
4, Appeal Process..
If this remedy is found not to be meritorious
or feasible it is requested that the City change the Appeal Process to
reflect the way in which the Captain’s examination was administered, by
extending the
Appeal Process..
The
City argues that the Grievant simply failed to pass the examination
for Captain and has
not established a violation of Civil Service Board Rule 4.
It is rule 4 that governs the Appeal Process for disqualification and the
Grievant didn’t comply with its provisions. The rule specifies
the grounds for appeal, establishing the
requirement to file an appeal within 15 days of the mailing of the test results.
The
Grievant seeks to compel the City through arbitration to amend its testing
procedures, particularly as they relate to scoring. The City, by function of its
Civil Service Board, has and continues to exercise the retention and control
over its testing procedures, including but not limited to the method, type,
procedure, practice, administration and scoring.
The City contends that the proper venue for
these grievances is Rule 4 and it’s appeal procedure, which the Grievant
failed to comply with, and so, the grievances should be denied.
DISCUSSION
Prior to arriving at a determination of the
merits of the grievances at hand, both the City and the Union granted authority
to the Arbitrator to rule on their arbitrability and timeliness.
The parties have a well-established collective
bargaining relationship that spans at least the past twenty
five years. During this period, the grievance procedure has been mutually
developed to effectively address work related grievances.
It is clear that it is the intent and policy of both the City and the
Union to favor resolution of disputes by use of Binding Arbitration.
The Grievant in this arbitration is seeking to
have a score of 60 added to his final score of 0 that he received on Emergency
Problem 2 in the Captain’s Examination. Of equal importance it is critical to
note that the Grievant is not challenging any aspect of the examination,
including the scores he received. This grievance is very narrow in that it
alleges that the City should score a 0, not as 0, but give it a numerical
value of 60, and count and
add 60 to the computation of
the Grievant’s final score.
Civil Service Board Rule 4.10 (a) provides for a very limited period of
time, 15 calendar days after notice of examination results are mailed to a
candidate to file an appeal under it’s criterion. Use of the 15-day calendar
rule to evaluate an appeal of disqualification assumes that Rule 4.9 (a) Test
Administration is utilized in its entirety. In significant part , Rule
4.9 (a) states “The Director
shall set minimum qualifying ratings for each phase of the examination and shall
provide that all candidates failing to
achieve such rating in any phase shall be disqualified from any further participation in the examination “ (Ex. A emphases
provided). For the current
Captain’s examination, the City, with the acceptance of the Union,
changed the application of Rule 4.9 (a) to allow a candidate to
participate in all phases of the test no matter what score a candidate received
on a particular element. This change took into consideration
certain testing objectives that the City
determined were necessary to the validity of the examination. However, this departure from the strictures of
Rule 4(a) had the intended and practical result to permit a candidate to achieve
a final passing score in the
test even if failing an individual
section. The successful placement
of a candidate who failed a portion of the examination on the eligibility list
is solely dependent on the weighted value of the failed section, it’s
numerical weight
expressed as a percentage of the final score. In order for a
candidate to overcome a failed portion
of the test, the candidate must
garner a sufficient rating in superior
points to outweigh the failed portion of the examination.
Because this was a weighted examination by design and should a candidate
fail a higher weighted value element as opposed to one of lesser-weighted value,
the number of points required to overcome failure of the greater weighted value
will increase. Weighing one
or more sections of an examination with differing weighted values is designed to
test and measure a candidate’s performance based on the complexities and
difficulties of the subject matter examined in that particular section.
The Collective Bargaining Agreement, Article 5 Grievance
Procedure, section 5.2 Definitions,
defines a grievance as a “good faith complaint“ or disagreement over
matters within the terms and conditions of the contract, other rules and
regulations, and Civil Service Rules subject to matters within the scope of
representation. Civil
Service Rule 1.6 provides that any conflicts with the rules are to be resolved
in favor of binding arbitration. The
Grievant did promptly respond to the
notice of disqualification, and he did not “sit” on the grievance. The
Grievant testified that he attempted to obtain a breakdown of his scores first
by contacting Chief Baustain, Supervising Officer of the Fire Department’s
Human Resources Division. Chief Baustain informed the Grievant that he didn’t
have this information and advised the Grievant to contact the City’s Human
Resources Department. Following the Chief’s recommendation the Grievant did
discuss the matter with Senior Personnel Analyst Gerriee Giffin.
Ms. Giffin was not
able to answer the Grievant’s inquiry to his satisfaction. No adverse
inference should be drawn that Chief Baustain or Analyst Giffin withheld the
requested information, as it appears the scores were either not under their
control or were otherwise unavailable.
The breakdown of the Grievant’s score was not available until the
opportunity of the
“feedback “ meeting with
Chief Baustain. It was during the course of that meeting that the Grievant
discovered the full facts surrounding his disqualification.
Both the Civil Service Rules and the Collective
Bargaining Agreement must be read in conjunction with each other.
Section 5.2 (a) of the Collective Bargaining Agreement restricts the
exclusive jurisdiction of the Civil Service Rules.
Section 5.2 (a) delineating the exceptions to the jurisdiction of the
Civil Service Rules is narrow. In
order to render a proper interpretation of these exceptions it is necessary to
draw from the restrictive language developed by both parties.
These grievances assert an exception to jurisdiction of Civil Service
Rule 4 because the Rule is unable to address underlying pleas for remedy.
Had the City provided an appeal procedure for this examination under Rule
4 to include the substance of these
grievances, it is more likely than not they would not receive favorable
consideration with respect to their arbitrability. The City changed the application of Rule 4.9 (a), when it
allowed a candidate who failed to pass an individual section of the examination,
to continue, rather than face automatic disqualification.
The City was unable to simultaneously notify
a candidate of the final score on the examination and provide definitive
ratings on each section. The City’s
imposition and allegiance to the 15 calendar day limit to file an appeal
under the provisions of Rule 4.10, created an unreasonable appellant
requirement, which the Grievant could not have met.
This effectively precluded these grievances from being heard under the
provisions of Civil Service Rule 4.10. It
must follow that given the limited circumstance found to be present in this
examination, the 15 calendar day time limits to file an appeal is not
practicable and could not be complied with by the Grievant.
Under this limited and narrow set of facts, Rule 1.6 is controlling and
its provisions apply. Arrival at a different conclusion would be to affirm an
inoperative appellate process to the exclusion of the rights provisions of the
Collective Bargaining Agreement and the Grievant’s right to be heard.
A contrary view would
also elevate Rule 4.10 grounds of appeal to be only means of appeal
notwithstanding its efficacy. Both
parties to the Collective Bargaining Agreement anticipated this type of conflict
and sought to resolve it under the terms of Civil Service Rule 1.6. Civil
Service Rule 1.6 favors the utilization of binding arbitration to resolve
conflicts between the Civil Service Rules and the Collective Bargaining
Agreement. In view of the
circumstances surrounding these grievances and the clear and compelling
expression of Civil Service Rule 1.6, Section 5.2 (a) of the Collective
Bargaining Agreement and parties’ policy in favor of binding arbitration,
these grievances are found to be arbitrable and timely.
The City asserted that the Union is in
violation of Civil Service Board Rule 4.12 by its failure to affirmatively
respond to the City’s request
for discovery. The Union argues Rule 4.12 does not require discovery because the
venue of these grievances is the arbitration provisions provided for in the
Collective Bargaining Agreement. The City did agree to move forward in
arbitration with the proviso that if the Arbitrator rules that discovery is
permitted by Rule 4.12, the evidence taken and received will be subject to a
motion by the City to be stricken. (TR:
8: 24;25 9: 1:3)
Civil Service Rule 4.12 is the exclusive
authority and domain of the Civil Service Board to compel compliance with the
adjudication of matters properly before it. Discovery violations with respect to this arbitration are
properly before the arbitrator and must be vetted in the arbitral proceedings.
No issues concerning discovery were presented to or argued before the
Arbitrator, nor did the City raise
discovery issues in their respective moving papers. Absent any discovery
violations presented, the Arbitrator rules that none have occurred.
The essence of the grievances contend that the
City is obligated to score a numerical value of 60 not as a failing score of 0,
but to assign the numerical expression of 60 points as earned credit to be
applied to the Grievant’s final score. Essential
to the Grievant’s argument is that the City removed the “poison pill“ from
the testing process; thereby creating the presumption that all candidates would
receive a passing score. In the Captain’s examination immediately preceding
the current one, the City used the “poison pill” to disqualify a candidate
from further participation in the test. This metrology of scoring, described in
the vernacular of a “poison pill” is consistent with Civil Service Board
Rule 4.9 (a). Civil Service Board Rule 4.9 (a) compels the automatic
disqualification of a candidate who fails to achieve a minimum passing score on
any element of a weighted examination. The Grievant argues that the City waived
its right to score the examination in accordance with Civil Service Rule 4.9 (a)
when it removed the “poison pill” provision as a condition of participation
in the examination. Accordingly, individual candidates failing performance
on an element may not be scored pass/fail but should be converted to a
numerical value earned and be a part of the final score.
Candidates offered concurrent testimony that in the orientation session
they were advised there would be "no poison pill" and that all
candidates would pass each individual part of the examination.
The
City did change the test for Captain. However, the testing change made was
related to the test’s metrology but not the passing score requirements. The City did agree to forego the
automatic disqualification per Rule 4.9 (a). The testing protocol permitted a
candidate to continue with the test notwithstanding his or her performance. This
is a weighted examination and its construction made it possible to fail a
specific problem and obtain an overall passing score of 70. The City
demonstrated this with the introduction of (Ex. E) where four successful
candidates did fail a portion of the examination. These candidates
compensated for the failing grade when they achieved
higher scores in the remaining parts of the test.
Persuasive
testimony was presented that the logic behind the decision not to automatically disqualify a failing candidate based on
his or her performance on a single
element, is to educate the candidates on what is required to successfully pass
the test.
The candidates were invited to participate in a
feedback session. The Grievant session was scheduled with Chief Baustian. During
that session, Chief Baustain advised the Grievant as to why he failed Emergency
Problem 2. Chief Baustain explained to the Grievant the proctor’s comments and
evaluation of his performance on Emergency Problem 2. The recommendation made to
the Grievant to potentially improve his score on future examinations is to work
on a truck company and gain necessary experience. The Grievant testified that
the majority of his work experience has been on an engine company.
The Grievant is not disputing the test score of
60, the test’s validity, or the testing procedure itself. Therefore it is not
necessary to delve into any other potential factors that may account for the
Grievant’s performance, as they are not the subject of this Arbitration.
In relevant part the feedback session establishes the purpose and
reasoning as to why the City did not employ automatic disqualification; it is to
educate an unsuccessful candidate on how to pass the test.
Part of the remedy sought by the Grievant would
permanently modify and undermine the testing procedure utilized. The integrity
of the examination process would be undermined because there would be no
objective means to measure a minimum level of competency.
Proper testing is a reasonable measure of a candidate’s basic fitness
to fulfill the minimum requirements for
a position. Under the terms of Rule
4, and absent the City deciding otherwise, an examination-administered does,
should and ought to gage a candidate’s minimum standard of competency. The
pass/fail standard used in the Captain’s examination is unequivocal and is an
integral part of the testing process. No compelling evidence was produced that
the City either by omission or commission modified the basic competency
requirements of its testing process by use of the pass/fail standard. The
pass/fail standard has been in use for several years and should not have been a
surprise to the candidates. Candidates
who chose to complete the entire examination process did so. Placement on the
eligibility list is not dependent on successfully passing all components of the
test but requires attainment of a minimum passing score of 70. Civil Service Rules 4, 4.8, 4.9 (a) clearly and
undeniably vests with the Civil Service Board the sole and exclusive authority
to administer testing and to establish minimum-passing requirements, to include
pass/fail.
No compelling evidence was produced to indicate that the City modified,
waived, or substituted its authority to establish and control its examination
procedures.
The Grievant could well have passed the
examination by scoring a higher value on the parts that he passed. The remedy
sought by the Grievant is denied in its entirety, even though the grievances
were filed in good faith. The good
faith standard of section 5.2 (a) of the Collective Bargaining Agreement cannot
overcome the expressed rights contained in Civil Service Board Rules 4.
In order for these grievances
to be successful, the City would have had to agree to waive its rights
prior to the examination.
The Union has requested the Arbitrator to amend
Civil Service Board Rule 4, Disqualification
Appeal Procedure, and to
extend the 15 calendar day time limit for filing appeals. It is noted that both
the Union and the City have an ongoing and constructive relationship.
Attention to this issue is better left to the parties to address in their
contract negotiations.
FINDINGS
AND CONCLUSION
The City did not violate Civil Service Rule 4 Announcements, Applications and Examinations, Sections 4.9 Test Administration, 4.10 Appeals From Disqualification, when it declined to amend the pass/fail score of the Grievant to a numerical value of 60 on Emergency Problem 2, of the Fire Captain’s Examination. The City properly applied the pass/ fail standard to the Grievant’s performance, and final score.
AWARD
The grievance is denied.
______________________
John F. Wormuth
July
21, 2004
Arbitrator
Footnote #1. The City’s raises objections to the arbitrability and timeliness of these grievances. Both the City and the Union have remanded to the Arbitrator the authority to determine the Arbitrability and timeliness of these grievances.
Footnote #2 November 15, 2002 is the only date found on EX.F.
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