cobi v. iam reorganization award 01-13-2012

IN ARBITRATION BEFORE

MICHAEL E. CAVANAUGH, J.D.

INTERNATIONAL ASSOCIATION OF, )

MACHINISTS, DIST. LODGE NO. )

160, )

)

Union, ) ARBITRATOR’S DECISION

) AND AWARD

and )

)

CITY OF BAINBRIDGE ISLAND, )

WASHINGTON, )

)

Employer. )

)

(Reorganization Grievance) )

For the Employer:

Sofia D. Mabee

Summit Law Group PLLC

315 Fifth Avenue South, Suite 1000

Seattle, WA 98104

For the Union:

Jacob H. Black

SaNni M-K Lemonidis

Robblee Brennan & Detwiler, PLLP

2101 Fourth Avenue, Suite 200

Seattle, WA 98121

I. INTRODUCTION

The City of Bainbridge Island, Washington undertook a substantial reorganization of its

workforce in late 2010 in response to continuing revenue shortfalls as a result of the bad

economy. The City “abrogated” some “positions,” as well as several entire job “classifications.”

Then, the City issued layoff notices to employees who occupied the abrogated positions and to

every employee in each of the abrogated classifications. Next, the City “reorganized” the

City of Bainbridge Island/IAM (Reorganization) P a g e | 2

available work into revised classifications designed to streamline the organizational structure and

to preserve the City’s ability to perform its core functions with a reduced workforce. Employees,

including those who had received layoff notices, were invited to apply for these revised

positions, and while many were successful, eight employees were not, and their layoffs became

final December 31, 2010.

The Union contends that the entire process constituted a “layoff” or “reclassification” of

positions due to a workforce reduction, and because a number of the employees who successfully

applied for the revised positions were less senior in their prior classifications than the employees

who were unsuccessful, the Union asserts that the process violated Article 11.4 of the

Agreement. That provision requires that layoffs and reclassifications be accomplished strictly by

order of seniority.1 The City argues, by contrast, that the management rights clause of the

Agreement empowered it to take these actions to respond to a severe economic crisis and that the

reorganization process did not violate any express provision of the CBA. The parties were unable

to resolve the resulting grievance in the preliminary steps of their Grievance and Arbitration

procedure,2 and these proceedings followed.

At a hearing held at City Hall on October 19, 20, and 21, 2011 the parties had full

opportunity to present evidence and argument, including the opportunity to cross examine

witnesses. The proceedings were transcribed by a certified court reporter, and I have carefully

reviewed the transcript in the course of my analysis of the evidence and argument. Counsel filed

1 The Union has also argued that as a practical matter, the City could have reached the same result—and complied

with the CBA—by laying off the required number of employees according to seniority within classification and then

reorganizing the work among the remaining employees. The City might also have complied with the Agreement, the

Union says, by populating the new classifications according to the employees’ relative seniority in the substantially

similar prior classifications which the City had abrogated.

2 Apparently, the City and the Union reached a tentative resolution of the issues a few months after the changes had

been implemented, but the bargaining unit voted not to ratify that agreement. The terms of the tentative settlement

were not made part of the record before me, and consequently they have not influenced my decision here.


simultaneous electronic post-hearing briefs December 13, 2011, and with my receipt of the

briefs, the record closed. Having carefully considered the evidence and argument in its entirety, I

am now prepared to render the following Decision and Award.

II. STATEMENT OF THE ISSUE

The parties were unable to agree on a precise statement of the issue to be decided. The

Union proposed a broad issue statement, i.e. whether the City violated the Agreement in the

actions it took as part of the reorganization. The City, on the other hand, proposed a statement of

the issue that focused on whether one or more of the specific contractual provisions the Union

had cited in its formal grievance were violated by the City. In the end, it is sufficient to frame the

issue as follows:

Did the City’s reorganization in late 2010 violate the parties’ CBA as alleged in

the grievance? If so, what is the proper remedy?

III. FACTS

The Union represents non-management employees of the City (with the exception of

commissioned personnel within the Police Department), including employees in finance,

planning and development, public works, and the municipal court. Over the course of several

years prior to this dispute, the Union and the City had negotiated with respect to the number of

employees within the unit and the titles and content of their job classifications. For example, the

parties negotiated a reorganization in Public Works in 2007 that resulted in the transfer of some

unit employees to new supervisory positions outside the bargaining unit while at the same time

creating several new Crew Chief positions within the unit. In addition, there were two rounds of

layoffs in 2009, accomplished by seniority within classification, totaling ten bargaining unit

employees. Tr. at 633-35; see also, Exh. E-46.


Nevertheless, the City’s finances continued to present challenges, and in mid-2010, Paul

Miller, the Chief Shop Steward for the Union, and Brenda Bauer, the recently-appointed Interim

City Manager, negotiated a one-year extension of a CBA that was scheduled to expire at the end

of 2010. As part of the agreement, the Union agreed to forego a scheduled COLA adjustment in

exchange for a guarantee that the City would not impose furloughs on unit employees during the

remainder of the CBA. The parties also agreed that employees would switch to less expensive

health plans (with some adjustment to the cost of dependent coverage). These changes and the

extension of the CBA were formalized in a written Contract Extension Agreement. Exh. E-3.

By the Fall of 2010, however, it became clear to the City that further reductions in labor

costs would be necessary to meet the City Council’s goal of continuing to provide essential

services while substantially increasing operating reserves. At Bauer’s request, the Union agreed

to the City’s plan to create a Voluntary Separation Program (“VSP”) which was designed to

provide incentives for employees to voluntarily leave City employment—and thus decrease the

need for additional involuntary reductions in force. Only two employees took advantage of the

VSP program, however. Tr. at 43. At the end of August 2010, the City Council made specific

budgetary decisions that were projected to require between $3M-3.5M in additional revenue

and/or cuts, and the Council indicated that it preferred cuts.3 In an email to all employees on

September 1, Bauer wrote that the Council’s directives almost certainly would mean “significant

layoffs, reductions in service, and major reorganization” in the City. Exhs. E-8, U-3.

3 In mid-August, Moody’s had downgraded the City’s credit rating, apparently based on the fact that the City was

ending the year with an operating deficit—for the second consecutive year. The Moody’s downgrade endangered the

City’s ability to borrow funds for capital expenditures—either credit would not be available (e.g. the State refused to

lend funds to purchase two police vehicles) or the City would have to pay higher interest rates for any bonds it was

able to sell. Consequently, the Council set a goal of increasing reserves to $4.8 M in two years and directed City

Manager Bauer to determine which “core functions” the City was required to offer, and which expenditures could be

severely reduced or eliminated.


Bauer met with Chief Shop Steward Miller and Union Rep Mike Goddard on September

24 to discuss the City’s plans, and she provided a list of 38 employees “at risk” of being laid off

(which included Miller). The list indicated that certain “positions” and entire “classifications”

would be “abrogated.” Exh. U-4 at 2. Bauer testified that she showed the Union “before and

after” charts of the reorganization at the meeting because she wanted them “to see how we’re

reorganizing the work” as well as the City’s intention to adopt changes in the “reporting

relationships.” Tr. at 341. Miller testified, however, that Bauer told the Union that the details of

the reorganization would not be set until after the Council formally approved the budget. Tr. at

47. In any event, shortly after the meeting, the City issued “at risk” notices to the 38 employees

on the list,4 and Bauer sent an email to all employees noting that “the budget proposal includes

reductions of or changes to positions in every department, and some consolidation of groups or

services.” Exh. U-5. She also wrote that she hoped the Council would make “final decisions by

the end of November, at which time we will make any official notifications regarding any hours

reductions, bumping, or layoff.” Id.

The proposed reorganization was presented to the City Council on September 29, 2010,

and Bauer continued to discuss the proposal with the Union, including a meeting in early

October with shop stewards Paul Miller, Mark Bartholomew, and Debbie Lee. Bauer testified

that none of the Union participants expressed any objections to the details of the proposal at that

4 The “at risk” list included employees whose classifications were slated for “abrogation of classification” (26

employees in five classifications), “schedule reduction” (five employees in four classifications), “abrogation of

position” (three employees in three classifications), and “abrogation of 1 position – least senior” (four employees in

four classifications). Exh. E-17. On its face, the “at risk” list does not define “abrogation” or the differences, if any,

among the various kinds of “abrogations” the City contemplated, and Chief Steward Miller testified that he did not

fully understand what the City intended. The normal dictionary definition of “to abrogate,” on the other hand, is “to

abolish by formal or official means.” Webster’s Encyclopedic Dictionary of the English Language (Portland House,

New York, 1989); see also, Black’s Law Dictionary (Rev. 4th

Ed., West, 1968) (“the destruction or annulling of a

former law, by an act of legislative power”).


time. By letter dated October 22, 2010, however, Business Representative Mike Goddard

objected that the City’s reorganization plan violated the Agreement in several respects. For

example, Goddard wrote5

We view this as a layoff/work force reduction and expect article 11.4 and all other

applicable articles of the collective bargaining agreement to be adhered to.

Rehiring into the new positions shall be done in order of seniority. Article 11.

Exh. E-21.

Similarly, the letter asserted

Many of the new positions appear to be filling the same basic function as the

abrogated positions. For example, an employee who previously held an

Engineering Technician position and has bump rights to the Engineering

Technician classification shall also have bumping rights to the proposed Project

Coordinator position. Article 11.

Id. The letter also contained a request to bargain the impacts of the proposal on the bargaining

unit to “ensure that we are in compliance with laws requiring negotiation when there is a change

in working conditions as well as to relieve any undue stress for our membership.” Bauer

responded by letter dated October 29, 2010 expressing a desire “to work cooperatively on these

issues” which, she wrote, are “likely to require a thoughtful review of the terms of our collective

bargaining agreement.” Exh. E-22. She invited Mr. Goddard to contact her assistant to set up a

meeting to discuss the issues, but it is undisputed that Mr. Goddard never did so.

The Council formally adopted the reorganization plan at its November 17, 2010 meeting.

The City then set about the process of drafting job descriptions6 for the new classifications, a

process that was hampered by the Thanksgiving holiday and a severe snow storm that left

5 Actually, Paul Miller testified that he drafted the letter for Mr. Goddard’s signature. Mr. Goddard himself did not

appear or testify at the hearing.

6 Miller testified that on several occasions earlier in the process, he had asked for job descriptions but Bauer told him

that the City’s plans were subject to change by the Council, and thus the drafting of final job descriptions would

have to await final Council action on the reorganization plan.


Bainbridge Island without power for several days. Bauer emailed draft job descriptions to Miller

on November 30 and indicated a desire to post them by December 6 so employees could apply

for the new positions in time to complete the selection process before the end of the year

(otherwise, employees would very likely suffer a break in service as of January 1 until the

process could be completed). On December 2, Bauer met with the Union membership in Council

chambers, and when Miller said he needed additional time to review the job descriptions, Bauer

agreed to allow him to review them on City time. Several times during this phase of the process,

Union representatives asked why the City needed to reorganize, and Bauer testified that she

repeatedly explained that the reorganization was designed to redistribute work and to modify the

supervisory structure so as to preserve core City services with fewer employees.7 For example, in

an email to Goddard on December 6, Bauer wrote “the city is going from a [sic] 152 positions in

2007 to 110 next year, and it is no longer possible to simply cut from what existed and continue

to execute core functions.” Exh. E-28. She added “I think [the reorganization] saves core

services and staff to a degree greater than just continuing to cut at the old org. The structure of

work for 152 is not the same as the structure of work for 110.” Id.

Bauer had indicated in an email to Goddard that she wanted to receive comments from

the Union with respect to the proposed job descriptions by 3:00 PM on December 6, and when

she had not received comments by that deadline, she posted the descriptions and sent job

announcements to all employees. Employees, including those subject to the layoff notices, were

invited to submit letters of interest for the new positions by December 13. Exh. U-13. In the

meantime, at a meeting on December 9, the Union again asked for additional time to review the

7 Formal layoff notices dated December 1, 2010 had already been issued to 29 employees, with the layoffs slated to

be effective December 31, 2010. Exh. U-14. On the other hand, as set forth below, the City apparently intended to

reduce to approximately 110 employees, and it would have been unnecessary to lay off 29 employees to reach that

target. At the end of the process, in fact, the City had reached its goal by laying off only eight employees.


job descriptions, while observing that the new job descriptions seemed to encompass the same

duties the employees had been performing under the old position descriptions. According to

Miller, Ms. Bauer responded to this comment with something like “the work has not changed,

but the positions have.” Tr. at 68.8 The Union suggested several times that the City “put the horse

back in the barn” so that the parties could work through their differences on the requirements of

the CBA in this context, but the City seemed unmoved by the Union’s claims that the proposal

violated the CBA.9 The parties engaged in “effects bargaining,” however, for the remainder of

the month of December. Although Bauer was visiting her elderly parents out of town from

approximately mid-December on, she arranged for others to carry on the face-to-face

negotiations, and she participated via email and phone.

While this bargaining continued, the City began to interview internal applicants for the

posted positions. Several employees testified that they believed they were interviewing for the

same position they already held, i.e. that only the name had changed.10

In addition, several

employees who were successful in obtaining a new position testified that the work they

8 Bauer testified, by contrast, that she said something slightly different, i.e. “the business of the City didn’t change,

but the distribution of the duties did.” Tr. at 418. As Ms. Bauer expanded on this concept at the hearing, “We’re

going to continue to have a water utility. Unless Council decides otherwise, we’re going to continue to have a sewer

utility. We’re going to continue to have a public works roads function, planning function, court, police, and that

what needed to happen was that we needed to take the duties in those different lines of business and organize those

duties differently to be successful going forward, that we could no longer operate as though we have 152 employees.

We had to structure the work for 110.” Tr. at 361.

9 For example, the City made clear that it would not agree to populate the new classifications “according to some

association with prior classifications.” Exh. E-29. As described previously, the Union had contended as early as

October 22 that the CBA required the City to fill positions in the new classifications in seniority order.

10

Facing layoff, and believing that they were being asked to interview for a job that differed only marginally, if at

all, from the one they already held, some employees may have gotten a bit testy during the interviews, including Ray

Navarette. In addition, most employees were asked during the interviews how they felt about the reorganization,

which Public Works Director Lance Newkirk thought would ease employee concerns in a time of stressful

organizational change. On the other hand, the question apparently made some employees uncomfortable, e.g. they

felt that if they expressed any reservation about the process, it might lessen their chances of being assigned to one of

the new positions. I mention these issues in passing, although they do not materially affect the analysis, because they

demonstrate how difficult the reorganization process was for everyone involved.


performed in the “new” classification turned out to be identical or virtually identical to the work

they had formerly performed in the “old” classification. The City disputes that characterization,

and I will examine the details of those arguments later in the course of my analysis of the critical

issues before me. For now, it is sufficient to observe that eight unit employees were unsuccessful

in finding placement and were laid off effective December 31, 201011

(although each was

notified of layoff on approximately December 20 and then placed on paid leave for the

remainder of the year).12

On January 12, 2011 the Union filed a formal grievance alleging violations of the

seniority article. The Union also asserted that the City had improperly implemented changes in

classifications and wage rates without bargaining to an agreement, such as by laying off

employees in abrogated classifications and then rehiring them in new classifications. These

unilateral changes, said the Union, had the effect of eliminating employees’ accumulated

seniority rights in case of future layoffs (because everyone entered the newly created

11

The employees are listed in “Addenda A” to the grievance. Exh. J-2 at 5. “Addenda A” actually lists nine

employees, but one (Ryan Erickson) was not laid off because the City obtained additional funding for his position.

Another, Katie Jones, was offered the opportunity to bump into a position she had previously held (Parking

Enforcement Officer) but eventually she declined. Bauer testified that the City held her position open for several

months following the reorganization, and when the Union eventually offered not to grieve her layoff if the City

would agree not to contest her application for unemployment benefits, the City agreed. Tr. at 372-73. Orlando San

Juan’s Senior Accountant position was eliminated in Finance, a department in which no “new” classifications were

created. Tr. at 629. Jennifer Smith’s and Amy Maxwell’s Court Clerk positions were abrogated, and again, no new

classifications were created in that department. Smith and Maxwell were the two least senior employees in that

classification. Thus, the central positions at issue in the grievance are those formerly occupied by David Nelson,

Christopher St. Romain, Ray Navarette, and Tom Oreiro. Nelson and Navarette were formerly classified as

Engineering Technician II’s in Public Works-Engineering, St. Romain was a Crew Chief and Oreiro was a Public

Works Journey Worker, both in Public Works-Operations and Maintenance.

12

As a result of a rumor that one employee scheduled to be laid off had made a comment about a shotgun, the Chief

of Police suggested that laid off employees should be given only a short period of time to gather their things, should

be promptly escorted off City premises and should be instructed not to return without prior arrangements. I make no

finding about whether a credible threat existed, but I note that several of the laid off employees, each of whom had

many years of loyal City service, understandably felt demeaned by the manner in which the City ended their

employment.


classification with the same seniority date, and seniority within classification governs layoff).13

The Union also contended that the reorganization plan itself improperly denied employees their

seniority right to avoid the layoffs taking place in December 2010 because employees were not

allowed to bump less senior employees in classifications they formerly had held. That is so, the

Union argued, because the City took the position that those former classifications no longer

existed as a result of the reorganization. Similarly, the Union asserted in the grievance that the

City had violated the Agreement by not giving due consideration to seniority when filling the

new positions, i.e. by not “recalling” or “hiring” laid off employees into those new positions by

strict seniority,14

as well as in its failure to utilize strict seniority in laying off or “reclassifying”

employees.15

All of these actions, the grievance asserts, had the effect of eliminating bargaining

unit members’ seniority for reasons other than those set forth in the CBA.

Bauer denied the grievance at the Second Step by letter dated February 1, 2011. These

proceedings followed.

13

In response to this specific concern, Bauer agreed to treat “prior City service” as the governing seniority measure

within the new classifications. Exh. E-29.

14

At the hearing, members of the City’s interview panels testified that they had been instructed to give seniority the

consideration required in Article 11.3 when filling “vacancies and promotions,” i.e. seniority was to be considered

along with the job requirements, but would only be determinative of employee selection if candidates had equal

bona fide occupational qualifications. There was only one case, however, in which candidates were equal in

qualification, and in that case, there were two positions available and thus both employees were successful in

maintaining their employment with the City.

15

Ms. Bauer had made clear that the City had no intention of filling the new positions by seniority. Exh. E-29. As a

result, Nelson, Oreiro, and Katie Jones were unsuccessful in obtaining one of the “new” positions, while less senior

employees within their classifications did find a home in the reorganized workforce. See, e.g. Exh. U-20. Similarly,

Navarette and St. Romain, although the least senior within their classifications at the time of the reorganization,

were prevented from exercising their substantial overall seniority to bump a less senior employee in a position they

formerly held. Again, the City contends those former positions no longer existed after the reorganization.


IV. ANALYSIS AND DECISION

A. Contract Provisions Most At Issue

The City argues that it had the management right to reorganize its workforce to meet the

public’s needs in times of a dire fiscal emergency and that the “reorganized positions”

constituted “vacancies” to be filled in accordance with Article 11.3, i.e. that the City had the

right to award the job to the candidate with the highest “qualifications” and not by strict

seniority. The Union counters that the entire reorganization was admittedly a process of

“workforce reduction”—the City’s stated goal, after all, was to achieve labor cost savings—and

thus the process constituted either a “layoff” and/or a “reclassification” as defined in Article

11.4. Therefore, says the Union, the “work force reduction” should have been determined

“strictly by the order of seniority” within classification.16

The City then compounded that

contract violation by structuring the process in a manner that did not allow senior employees to

exercise their overall seniority to return to formerly held classifications.

The full text of the contract provisions most relied upon by the parties is set forth below:

11.3 VACANCIES AND PROMOTIONS – The Employer’s intent is to

encourage employees to apply for promotional opportunities. As job

openings occur, notices shall be placed on bulletin boards throughout the

City and through the use of internal e-mail for not fewer than five (5)

working days prior to outside posting. The final decision shall be posted

immediately following selection. Seniority shall be given consideration

along with the requirements of the Employer in filling job vacancies and

promotions. Seniority within classification shall apply when bona fide

occupational qualifications are equal.

11.4 LAYOFFS AND RECLASSIFICATION – Layoffs or reclassifications

due to work force reductions shall be determined strictly by the order of

seniority with the employee with the least seniority within classification

affected first. Employees who have previously held other classifications

16

The Union also contends that the City’s actions, considered apart from the express contractual provisions, violated

the implied covenant of good faith and fair dealing, i.e. that even if a strict reading of the contract language would

otherwise permit the City’s actions, the Union and the unit employees had implied rights under the seniority article

which were central to the entire bargain, and thus it would be inequitable to allow the City to deny its bargaining

partner the “benefits of the bargain.”


shall have the right to return to such classifications if the Employee is still

qualified for the position and their overall seniority is greater than other

employees who are currently in said classification. Employees shall not

accrue seniority while on layoff.

Articles 11.3 and 11.4 (emphasis supplied).

B. Procedural Arbitrability

Before reaching these core questions, however, I must consider a procedural argument

offered by the City. Specifically, the City contends that the reorganization plan was approved by

the City Council on November 17, 2010, whereas the grievance before me was not filed until

January 12, 2011. On these facts, the City argues that the grievance was untimely—at least as to

any matters occurring before December 1, 2010—based on the following contract language:

4.9 Step 2 – In the event the grievance is not settled in Step 1, or in the event

the Union is the aggrieved party, the grievant or the Union representative

of the grievant shall, within forty-two (42) calendar days of the occurrence

of the alleged grievance, prepare a written grievance document which

shall include the following [information set forth in Article 4.9.1].

Id. (emphasis supplied). In light of the plain language of Article 4.9, argues the City, the

grievance is barred “to the extent it contests the creation and abrogation of classifications, layoffs

occurring as a result of reductions in force in the Finance and Municipal Court departments, and

all other City actions taken on November 17, 2010.” Employer Brief at 21, fn. 11.

As with all issues that involve the interpretation of the terms of the parties’ Agreement, as

Arbitrator I am bound to give effect to the mutual intent reflected in the prescribed steps of a

grievance and arbitration clause, including time deadlines. On the other hand, as I observed in a

prior case presenting a similar issue:17

17

King County Housing Authority and Pacific Northwest Regional Council of Carpenters, AAA Case. No. 75 300

00400 09 (Cavanaugh, March 23, 2010) (unpublished). The issue presented was whether a grievance became non-

arbitrable because the Union had arguably moved the matter prematurely to Step 3 of the prescribed process.


. . . a sound labor relations climate depends upon the availability of effective

channels for processing disputes that otherwise could fester and substantially

interfere with an organization’s ability to accomplish its mission, and that

consideration is all the more important when the mission involves an important

public purpose . . . . Thus, while the parties are free to provide . . . that a

missed deadline during the arbitral process will result in forfeiture of the

grievance, if there are doubts about whether the facts of a particular case

constitute “a failure to comply with a time limitation of the procedure,” those

doubts, as a matter of public policy, should be resolved in favor of arbitrability.

Id. at 11. That is so, I noted, because

. . . the purpose of arbitration is to provide a safety valve for resolving disputes

so that they do not unnecessarily poison the relationship between the parties.

Explicit procedural requirements must be enforced by the Arbitrator, but if it is

unclear whether the parties fully intended that a particular technical procedural

lapse should result in a forfeiture of a grievance, the public policy in favor of

arbitrating workplace disputes will usually outweigh the importance of

compliance with each and every detail of the specified process, particularly in the

absence of a clear demonstration of prejudice to the opposing party.

Id. at 16. Similar considerations are applicable to this case as well, which arises in a difficult

economic climate that has placed strains on the relationship between the City, its employees, and

the Union. Leaving the underlying dispute unresolved, such as by substantially disposing of the

grievance on a procedural issue rather than on the merits, could cause the dispute and the hard

feelings it has engendered to “fester,” impairing the maximum efficiency of City operations at a

time when that efficiency is imperative to the success of the City’s efforts to continue to provide

essential public services. Thus, any doubts about whether the parties intended to erect a strict

procedural bar to consideration of this grievance should be resolved in favor of arbitrability.

Turning to the specific facts here, the City’s theory is that the Union should have

immediately filed a grievance upon the Council’s adoption of the budget and reorganization plan

on November 17, 2010. On the other hand, given that the implementing job descriptions were not

yet drafted, that the reorganization was not scheduled for final implementation until January 1,

2011, and the fact that the parties were continuing to discuss the issues raised by the City’s plan,


the Union might then have faced a contention by the City that it had filed the grievance too soon.

It makes little practical sense, of course, to enforce the Agreement’s procedural time limits in a

manner that might require a party to file one or more “protective” grievances before the precise

contours of a dispute are fully apparent, especially when the parties are already engaged in

ongoing discussions that, if successful, might entirely alleviate the contractual concerns. The

Union, in any event, did file its formal grievance well within 42 days of the final implementation

of the reorganization plan on January 1, 2011, and it even filed within 42 days of the City’s

issuance of “draft” job descriptions for the new positions on December 6—without which the

plan could not have been implemented. In sum, in the real world, it seems to me the City’s

argument improperly designates one early aspect of a unified process as the point at which the

clock began to run, rather than completion of the process as a whole.

Even if that were not the case, however, there are two other considerations that would

require me to reject the City’s procedural argument. First, there is no contention here that the

City has been prejudiced in some way by the failure of the Union to file a formal grievance until

after the reorganization had been fully implemented, i.e. when it became clear not simply how

the work had been rearranged but also who would be out of a job. Nor could there be. Within 42

days of the Council’s November 17 resolution, the Union had formally notified the City that its

plans appeared to violate the parties’ Agreement in several specific respects, i.e. the October 22,

2010 letter to Ms. Bauer drafted by Paul Miller for Mike Goddard’s signature. Thus, this is not a

case in which the arguably missed filing deadline resulted in lack of timely notice to the City of

the Union’s issues with the reorganization plan. Consequently, it appears to me that even if I

were to find that the “occurrence” being grieved here was the Council’s budget resolution


adopted on November 17, 2010, the Union “substantially complied” with the requirements of

Article 4.9 by giving timely written notice of its contractual concerns.

Second, unlike some CBA’s I have encountered over the years, including the one in the

King County Housing Authority decision I quoted from above, the parties’ Agreement does not

provide that a tardy grievance will automatically be considered “forfeited” or “abandoned,” nor

does it expressly provide that an Arbitrator lacks authority to hear a grievance filed outside the

prescribed period. While Article 4.2 does mandate that “grievances shall be processed in strict

accordance with the following procedures and stated time limits,” and the Article utilizes

mandatory language with respect to the timely filing of a written grievance,18

there is no express

provision that a failure to comply with those procedural aspects of the process are fatal to the

grievance. That is, it is by no means clear to me that the parties have mutually agreed that an

untimely grievance must always be dismissed on procedural grounds, as opposed to some less

draconian arbitral remedy, applied on a case-by-case basis, that would vindicate the parties’

provisions for timely processing of contractual disputes. For example, in an appropriate case, an

Arbitrator might employ cost-shifting or some similar procedural approach short of dismissal as

a means of providing sufficient incentives for the parties to comply with their agreed timelines.

In sum, I find that the grievance should not be dismissed or limited on procedural

grounds.

18

“In the event a grievance is not settled in Step 1, or in the event the Union is the aggrieved party, the grievant or

the Union representative of the grievant shall, within forty-two (42) calendar days of the occurrence of the alleged

grievance, prepare a written grievance document which shall include [specified information in support of the

grievance].” Article 4.9 (emphasis supplied). Thus, what is required under Article 4.9 is written notice within forty-

two days of the basic facts and contractual arguments underlying the grievance. While the October 22, 2010

Goddard letter was not formally labeled a “grievance document,” it served many of the same purposes considering

the evolving nature of the dispute.


C. The Merits

1. Whether Article 11.3 or Article 11.4 Applies

I turn, then, to the merits of the dispute. As noted earlier, the crux of this case is whether

the City’s reorganization in the Public Works Department was an exercise of its management

right to organize the work and to create new job classifications (Articles 2.1 and 12.6) such that

Article 11.3 (“Vacancies and Promotions”) properly applies, or whether the reorganization was

an instance of “layoffs or reclassifications due to work force reductions,” in which case the

provisions of Article 11.4 are the appropriate yardstick against which to measure the propriety of

the City’s reorganization. The evidence convinces me that under these specific circumstances,

the City should have applied Article 11.4.

At the outset, I find it important to note that I do not question the good faith of the City’s

managers (including City Manager Bauer) who were attempting to deal with a severe economic

crisis while preserving, to the maximum extent possible, the City’s ability to provide essential

services to the public. While the Union has argued, both at the hearing and in its brief, that the

City deliberately set out to eliminate senior employees from the workforce in violation of the

Agreement, I do not find convincing proof of that assertion in the evidence.19

Nor do I question

the judgment of the City’s managers that streamlining the management structure and transferring

some functions from one section to another within Public Works, as well as configuring

positions somewhat differently, would best preserve the City’s ability to provide essential

19

I understand the Union’s suspicions, based largely on a City spreadsheet prepared early in the process that might

be read as “predicting” which employees would no longer be employed after the implementation of the

reorganization plan. Exhs. U-48 and U-49. However, the spreadsheet was adequately explained, in my view, as a

“modeling” exercise created during the budgeting process, i.e. it was a “what if?” scenario. It is significant to me,

for example, that several employees not “predicted” to be “gone” from the City in the spreadsheet nevertheless lost

their jobs during the reorganization, while several who were predicted to be “gone” were not in fact laid off. In sum,

the number of “inaccurate” spreadsheet predictions, to use the Union’s terminology, is roughly equivalent to the

“accurate” ones. Thus, the spreadsheet is insufficient to establish intentional manipulation of the reorganization

process with a design to rid the City of senior employees.


municipal services with fewer employees. So long as the City acts in compliance with the

provisions of its Agreement with the Union, those are management choices beyond an

Arbitrator’s authority.

But the legitimacy of the City’s goals, and the soundness of its management approach in

a general sense (e.g. what would have been a reasonable management response to a fiscal crisis

in a nonunion setting or under a CBA with less stringent seniority provisions), does not answer

the question before me, i.e. whether the City has complied with its contractual obligations under

this CBA. It is true, of course, that the City has reserved its right to create “new” classifications.

That right is clearly set forth in Article 12.6, and the text of the Article implies, with little

ambiguity, that while the Union has a role in that process, that role is limited to negotiations

concerning an appropriate wage rate for the new classification—i.e. while the Union can grieve

the wage rate if the parties fail to agree, there is no express provision for grieving the

establishment of the new classification itself. On the other hand, the contract does not contain a

precise definition of what constitutes a “new” classification. The application of Article 12.6 in

many circumstances would not likely be controversial—for example, if the City created a job

classification encompassing duties completely unlike any a City employee had previously

performed. Such a classification would no doubt be considered “new” within the meaning of

Article 12.6, and properly so. At the other end of the scale, it would be just as clear, in my view,

that merely changing the title of a City job classification—without more—would not create a

“new bargaining unit classification” within the meaning of Article 12.6.20

20

The City appears to agree. See, Employer Brief at 24 (employees who experienced only a change in job title did

not receive at-risk or layoff notices, i.e. the City did not treat the classifications as “new”).


The evidence before me, of course, falls somewhere between these two poles, and thus I

am required to determine the proper application of Article 12.6 to specific circumstances that are

more ambiguous than the above examples. On that issue, the Union argues that “while the

reduction of eight FTE’s necessarily created additional duties for some employees, their work

assignments did not change.” Union Brief at 40. For example, the former “assignments” within

the Crew Chief position were simply broken out into separate classifications, e.g. Treatment

Plant Operator 3 (Steve Pyke) and Waste & Waste Water Maintenance Tech 3 (Randall

Williamson). But the jobs themselves, says the Union, remained virtually the same as the Crew

Chief jobs before the reorganization.21

In addition, the workgroups within Operations &

Maintenance did not change except that the Facilities journey level employee, Kenny Taylor,

was transferred to the Streets and Facilities group and as a consequence may have had some

“Streets” duties after the reorganization, at least on paper. But these minor changes and transfers

of duties, argues the Union, do not constitute the creation of genuinely “new” classifications.

In arguing to the contrary, the City focuses on a number of changes made in the

organizational structure. Some involved changes in the management reporting relationships, e.g.

water resources functions would be overseen by the Engineering Manager, and administrative

support personnel were combined into a single unit reporting to an Administrative Services

Manager. Tr. at 562; Exhs. E-10, E-11, and E-12. Other management positions were shuffled,

e.g. the position of Deputy Director of Public Works was abrogated and the Public Works

Manager position was created. Exhs. E-12 and E-13. As previously noted, the Crew Chief

21

As I will discuss in a moment, the City contends that the old Crew Chief job descriptions envisioned the

performance of a relatively high level of supervisory duties, whereas the new Technician 3 classifications are

oriented more toward “field work.” As I understand it, however, the City concedes that the Crew Chiefs generally

did not perform the level of supervisory work that had been anticipated when the positions were created in 2007.

Thus, while I agree with the City’s argument that the formal job description was revised in a significant respect, that

revision is not necessarily inconsistent with the testimony of the former Crew Chiefs that they did essentially the

same work before and after the reorganization.


positions created in the 2007 reorganization had been envisioned as developing into high-level

administrative support to the Public Works Supervisor, including the application of computer

skills, scheduling duties, and handling of some personnel matters. Because that level of support

had never actually materialized, however, the reorganization abrogated the Crew Chief positions

and created the corresponding Maintenance Technician 3 and Mechanic 3 classifications. The

revised classifications were more oriented to the “boots on the ground” aspect of the work and

were “not the same” as the Crew Chief classification. Tr. at 568; Employer Brief at 23. As Public

Works Director Lance Newkirk explained in his testimony, “duties were reassigned. We had to

break crews up. We had to fit them in different manners than they had been organized before.”

Tr. at 569. The City’s Brief also points to the fact that HR Manager Jennifer Longfield “analyzed

whether the [pay] range of Maintenance Technician III and Mechanic III classifications were the

same as the former Crew Chief positions and determined that they were not.” Brief at 24; Exh.

E-45 (Technician 3 classifications do not reflect the “advanced administrative duties” contained

in the former Crew Chief position; new positions are “intended to perform more field work

alongside crews” and thus are properly classified at a lower wage scale).

After carefully considering these arguments, I agree that the changes in the job

classifications cited by the City support a conclusion that several of the new classifications are

somewhat “different” from those under the prior organizational structure. “Different,” however,

is not necessarily the same thing as “new.” For example, for many of the positions, the factor

most heavily relied upon by the City in support of its “newness” argument is that the position

reports in a different management line. But the evidence before me does not support a conclusion

that reporting to a different manager had any appreciable impact on the content of the actual job


performed by the employee.22

In other instances, the City has pointed to new licensure

requirements, e.g. for Treatment Plant Operator 3, or to some additional duties (at least in theory)

such as Facilities Tech Kenny Taylor having added Streets duties.23

In each case, however, while

the changes might amount to something like a “reclassification”24

of an existing position (which

also must be accomplished by strict seniority under Article 11.4 to the extent it implicates a

workforce reduction), the changes at issue here are simply insufficient to establish a “new”

position that could be filled as a “vacancy” with minimal regard for the seniority rights of

employees already occupying what is essentially the same job.

As an aside, it seems to me that the City’s arguments implicitly assume that a

classification that is “new” for purposes of establishing an appropriate wage under Article 12.6—

such as the elimination of the Crew Chief positions in favor of the Technician 3 classifications—

is likewise “new” for the purposes of placing employees into the position. In many cases, that

might well be true, but it is not inherently true in every case. Here, for example, even if the

22

If a change in the reporting manager were sufficient, in itself, to create a new classification, then no existing job

description at any point in time would reflect a substantial degree of permanence. And if that were the case, job

security seniority rights could prove to be largely illusory because laid off employees might well be prevented from

bumping back to previously held positions because those former classifications could be said no longer to exist—

even if “different” classifications exist under which precisely the same work is performed. That is essentially the

argument the City has made here. But there is no reason for me to believe on this record that the parties mutually

agreed that seniority rights could be extinguished so easily. Therefore, the fact that the parties included a seniority

“right of return” in their Agreement strongly suggests that a simple change in the reporting structure, or some other

minor alteration in the job, is insufficient to make a job classification “new” enough to eliminate bumping rights

under Article 11.4.

23

The City’s best argument along these lines, it seems to me, is that the removal of advanced administrative duties

from the Crew Chief classification resulted in a new position. But given that it is undisputed that the Crew Chiefs

did not actually perform those duties to any great extent prior to the reorganization, the recognition of that fact in the

revised Maintenance Technician 3 positions is much closer to something like a “reclassification” than the creation of

an entirely new classification. That is so because the jobs the former Crew Chiefs performed after the reorganization

are essentially the jobs they previously performed, even if it was appropriate to reclassify those jobs to account for

the fact that anticipated duties, contained in the formal job description created in 2007, were not being treated as part

of the job in practice.

24

The Agreement does not define “reclassification,” but the concept is broad enough, it seems to me, to encompass

changes to an existing job classification that leave the vast majority of the essential functions in place, whether or

not there is a change in the associated wage rate.


Maintenance Tech 3 positions were “new” for purposes of adjusting the former Crew Chief wage

rate under Article 12.6, that does not necessarily establish that they were “new enough” to

extinguish employees’ seniority rights under Article 11.4, i.e. to eliminate the Crew Chiefs’

rights to be laid off or reclassified in strict seniority order.

In sum, when read in light of Article 11.4, I find that the City improperly treated the

revised classifications as “vacant” positions it could fill under Article 11.3. First, there can be no

question about whether one of the central purposes of the reorganization was the savings in labor

costs to be achieved through a reduction in the workforce. Ms. Bauer repeatedly made clear that

was the City’s goal, and she did so from the very beginning. Given that fact, it would be very

difficult for me to conclude that the City need not have complied with the following language of

Article 11.4:

Layoffs or Reclassifications due to workforce reductions shall be determined

strictly by the order of seniority with the employee with the least seniority within

classification affected first.

As the City reads this language, it does not preclude a “tentative” or “technical” mass “layoff” by

seniority within classification;25

followed by a “reorganization” creating “new” classifications;

followed by a filling of those “new” positions giving little or no effect to relative seniority, either

within classification or according to overall City seniority; followed by a final layoff of those

who were not successful in competing on the merits for one of the “new” positions. That

approach, however, had the effect of circumventing the seniority protections embodied in Article

25

It is clear to me that the layoff notices to 29 employees on December 1, 2010 did not constitute an actual layoff.

As previously noted, notices went to a much higher number of employees than the City intended to let go, and

several of those employees were highly unlikely to have been ultimately laid off. For example, Treatment Plant

Operator Steve Pyke, who received a layoff notice, could not reasonably have been expected to lose his job with the

City as a result of the reorganization. He was the longtime operator of the treatment plant, and the City had no one

else on staff with the same skill level to replace him. In short, the real “layoffs” here, at least within the Public

Works Department, did not occur until after the City had interviewed for and filled the positions it incorrectly

treated as “new vacancies.”


11.4, i.e. that workforce reductions must be accomplished by strict seniority26

within

classification.

I will concede that the City’s reading of the contract language is not out of the question,27

but because the entire reorganization process was designed to produce a layoff of a sufficient

number of employees to achieve the desired labor savings, i.e. the entire process was designed to

be a “work force reduction,” I must find that the City violated Article 11.4 of the Agreement to

the detriment of several employees’ accumulated seniority.28

2. Bumping Rights

A similar analysis leads to the conclusion that employees otherwise properly laid off or

reclassified due to workforce reduction (i.e. by seniority within classification) should have been

allowed under Article 11.4 to bump back to a formerly held position if they had more overall

seniority than an employee then occupying that position. That is, if the City had actually laid off

eight employees by seniority within classification prior to reorganizing the workforce structure,

it seems likely that one or more employees—such as Crew Chief St. Romain, who was lowest in

26

In agreeing to a strict seniority provision in Article 11.4—as opposed to some form of “modified seniority”

provision in which the relative abilities of employees also play an explicit role (such as in Article 11.3)—the City no

doubt was aware that “the principal thesis underlying [strict seniority] is that, as between a junior person of superior

qualities and a senior person of inferior qualities, the social claim of the latter should override both the needs of the

business and the interest of the public in its efficient operation.” Ruben, ed., Elkouri & Elkouri’s How Arbitration

Works at 872 (Sixth Ed., BNA, 2003); see also, The Common Law of the Workplace § 5.9 at 14 (“Since strict

seniority provisions elevate the concerns of longevity over those of efficiency, they are not typical”). While the

application of the principal that seniority should take precedence over efficiency may be particularly painful in the

present economic climate, it was entirely foreseeable that a strict seniority approach to workforce reductions would

impact the City at precisely such a time, and thus the present dire financial circumstances do not constitute sufficient

justification for relieving the City of its contractual obligations.

27

For clarity, I reiterate here my earlier observation that the evidence is insufficient for me to find that the City

knowingly and intentionally circumvented the seniority provisions of the CBA. I do find, however, that the City read

the CBA incorrectly.

28

It appears that Dave Nelson (Engineering Technician), Tom Oreiro (Public Works Journeyman) and Katie Jones

(Building/Planning Technician) were not the least senior in their respective classifications and thus would not have

been laid off, even provisionally, had the City properly applied Article 11.4. Exh. U-20.


Crew Chief classification seniority, or Ray Navarette, who was lowest in seniority within the

Engineering Technician classification—could have successfully bumped back into the Public

Works Journeyman position they had previously held. See, Exh. U-21.29

By artificially breaking

the workforce reduction process into component parts rather than viewing it as the integrated

whole it was, the City deprived these employees of their right to exercise seniority to maintain

employment with the City.

For the same reasons set forth in the prior section, I cannot accept the City’s contention

that the prior PW Journeyman classification no longer existed for St. Romain and Nelson to

bump into. Even if the City properly reorganized before the final layoffs, the “new”

classifications were essentially the same classifications as before, simply with a different name

and only minor changes in content. Those combined changes constituted at most a

“reclassification” of existing jobs as part of a workforce reduction, but even in such a

reclassification, qualified employees are entitled under Article 11.4 to exercise a “right to return”

to a former classification consistent with their overall seniority. Consequently, I must find that

the City violated Article 11.4 in that aspect of the reorganization as well.

3. Remedy

I turn, then, to the issue of a proper remedy. The Union urges me to restore the status quo

ante, i.e. require that the City return to the organizational structure that existed prior to the

reorganization,30

including restoring the eight laid off employees to employment with the City

29

For reasons that follow in the text, even viewing the issue post-reorganization, the Maintenance Tech 2 positions

were similar enough to the prior PW Journeyman positions Navarette and St. Romain had previously held that they

should have been allowed to bump back by overall seniority.

30

During the process, the Union had described this approach as “putting the horse back in the barn.” Now, of

course, that approach would be significantly more difficult than it would have been in late 2010 because

organizational changes have been implemented and a year has passed. Nevertheless, employees are entitled to have


and making those employees whole for lost wages and benefits. Union Brief at 54-55. The City’s

brief did not comment on what remedy might be appropriate in the event I found a contractual

violation.

The Union’s central argument in favor of requiring the City to return to the status quo

ante is that the City had no right to unilaterally alter or abrogate job classifications. That is so,

says the Union, because the CBA expressly requires that employees be classified according to

Exhibit B to the Agreement. Article 13.1.2. That Exhibit lists employees by name and wage rate,

as well as by classification and job assignment, and the Union argues that this structure of the

Agreement demonstrates that the parties intended to make those classifications a term of the

contract which can only be altered by a mutual agreement.31

The Union also points to several

prior occasions, documented in the record, on which the parties have negotiated changes to job

classifications, e.g. the 2007 reorganization in Public Works. Thus, argues the Union, the parties

have created a binding past practice that such changes must be negotiated.

The City counters that the Agreement recognizes the City’s right to create new

classifications and to alter existing ones, both in Article 12.6 (“New Classifications”) and in the

Management Rights Article 2.1 (“Direction of Workforce”). The City also points to the general

arbitral rule that job classifications mentioned in an Agreement are not frozen for the life of the

CBA simply because they are listed in the contract. See, e.g. St. Antoine, ed., The Common Law

of the Workplace § 4.5 (2d Ed., BNA, 2005). As to the alleged past practice, the City contends

that the evidence is most consistent with a conclusion that the parties have historically updated

their rights restored, i.e. to receive the contractual benefits they should have been accorded, even if it is inconvenient

for the City to do so now.

31

The requirement that contractual changes must be agreed upon and reduced to writing, says the Union, is

expressly set forth in several contractual provisions, e.g. Articles 9.1, 28.1, and 29.1.


the list of classifications in the Agreement during contract negotiations, i.e. when the contract is

open, and also notes that several existing classifications have never been negotiated or included

in the CBA at all. Employer Brief at 35. Thus, argues the City, the evidence is insufficient to

carry the Union’s burden of proof as to a binding past practice.

After carefully considering the parties’ contentions, I agree with the “majority” position

among arbitrators, i.e. that “a contract’s lists of classifications and wages [reflect] classifications

in effect when the contract was signed, not a limitation on management’s right, if exercised in

good faith, to direct the work force.” Id., Comment to § 4.5. That right includes, in the majority

view, the right to eliminate or combine classifications for legitimate business reasons—at least in

the absence of proof of an antiunion purpose, or the creation of a safety hazard, or some similar

indicator of unfairness or impropriety. Id., § 4.8 at 127-28. Applying those rules here, I find that

the City acted in good faith in changing the job classifications and management structure and had

a legitimate reason for doing so, i.e. responding to a severe economic crisis. The City’s error, in

my view, was not in reorganizing the workforce per se, but rather doing so in a way that had the

effect of circumventing the seniority rights of some employees as set forth above. Therefore, in

determining an appropriate remedy here, the guiding principles must be to preserve the City’s

right to organize its workforce so as to maximize productivity and efficiency within the

parameters of the CBA, while at the same time providing a remedy sufficient to vindicate the

seniority rights of the wronged employees identified in the Union’s grievance. In the end, I do

not find it necessary to order that the City undo the reorganization in its entirety in order to

provide an appropriate remedy for those employees.

First, I note that the evidence does not establish that each one of the eight employees

listed in Addenda A to the grievance was improperly laid off. In fact, the evidence establishes


that Court Clerks Maxwell and Smith, as well as Senior Accountant San Juan, were all laid off

according to seniority within the classifications they occupied, just as Article 11.4 requires, and

unlike Public Works, no new or revised positions were created within Finance or the Municipal

Court to perform the functions of their eliminated positions. Nor has there been any showing of a

prior classification in some other department that any one of these employees could have

bumped into. Therefore, I must deny the Union’s grievance to the extent it encompasses their

layoffs.

Of the five remaining employees at issue (Katie Jones, Chris St. Romain, Ray Navarette,

Dave Nelson, and Tom Oreiro), Jones, St. Romain, and Oreiro were each laid off out of seniority

order within their classifications. That is, the evidence establishes that Ms. Jones was 2 of 3 in

the Building/Planning Technician classification, but she was laid off while the employee with the

least seniority in that classification was retained.32

Similarly, Nelson was the most senior (1 of 8)

in the Engineering Tech classification,33

and Oreiro was 2 of 11 among the Public Works

Journeymen. Exh. U-20. Clearly, then, none of the three employees were laid off or reclassified

by strict seniority within classification. That result violated the Agreement and presumptively

entitles each employee to relief, including reinstatement without loss of seniority and with back

32

As I understand it, Ms. Jones was a technician in the Planning Department, but the City determined that a planner

could take on her counter duties. In addition, the two Permit Technician positions existing after the reorganization

were in the Building Department, but Ms. Jones did not have experience in the building permit process. On the other

hand, the record does not establish the extent to which, if at all, it would have created a substantial burden on the

City to provide training to Ms. Jones to enable her to perform the Building Department position. That issue is moot,

however, because the evidence established that the City and the Union reached a settlement of Ms. Jones’ layoff

grievance. See, Footnote 34, post.

33

The City seems to argue that Mr. Nelson was not qualified for the post-reorganization engineering position

because he lacked a Professional Engineer License (“PE”). The evidence established, however, that the actual

requirement of the position was the ability to obtain a PE license within a year. The City doubted Mr. Nelson could

do so, while he testified that he would have expected to be able to meet that qualification. Given the strong seniority

language in the Agreement, which does not include a consideration of relative qualifications in the workforce

reduction context, I must resolve any doubts on this issue in Mr. Nelson’s favor. Whether Mr. Nelson could continue

in such a position if he failed to acquire a PE license within a year is a question I need not and do not decide.


pay and benefits.34

Similarly, Navarette and St. Romain, while least senior in their classifications

and thus properly designated for layoff initially, were not afforded an opportunity to exercise

overall seniority to return to their former PW Journeyman classification (either pre-

reorganization or in its reclassified Maintenance Tech 2 form). Therefore, they are also entitled

to relief, including a right to reinstatement with back pay and benefits should a reconstruction of

the layoff process establish that they would have been qualified to assume a PW Journeyman

position, or some other position they previously held, then occupied by an employee with less

overall seniority.

The remedy will be limited to these four employees (Nelson, Oreiro, St. Romain,35

and

Navarette) while, for reasons set forth in the prior footnote, Ms. Jones will not be awarded any

relief. It is no doubt the case, however, that other employees will very likely be affected by a

reconstruction of what would have happened had the City complied with Article 11.4. That is, if

the layoff/reclassification is modified so as to recognize the seniority rights of the four

employees as set forth above, there will no doubt be a domino effect on one or more of the less

senior employees who successfully retained a City position during the reorganization. These are

matters that should be addressed by the parties in the first instance, however, and thus I will

remand the matter for an attempt to reach agreement on the proper implementation of the general

34

With respect to Ms. Jones, however, City Manager Bauer testified that she reached an agreement with the Union

that if the City did not contest Ms. Jones unemployment benefits, the Union would not contest her layoff. Tr. at 372-

73. The Union’s witnesses did not contradict this testimony, and thus I find that Ms. Jones is not entitled to a remedy

here even though she was laid off out of seniority order. In any event, any remedy to which she might otherwise

have been entitled would necessarily have been reduced or eliminated by her failure to accept the Parking

Enforcement Officer position to which she could have returned on the basis of her overall City seniority.

35

Mr. Romain did not testify at the hearing, and there is no evidence before me as to whether he wishes to return to

the City. He is entitled, however, to an opportunity to exercise his overall City seniority to return to a former

classification. Whether he is entitled to relief, and the scope of that relief, if any, will depend on what he decides to

do.


remedial principles set forth in this Award. I will reserve jurisdiction, however, to resolve any

disputes with respect to remedy that the parties are unable to resolve on their own.

D. Conclusion

The grievance must be granted in part and denied in part. Employees Nelson and Oreiro

were improperly laid off out of seniority order, and employees St. Romain and Navarette were

improperly denied an opportunity to exercise bumping rights to return to a formerly held

classification. Therefore, the grievance must be granted as to them, and they are entitled to an

opportunity to exercise their seniority as provided in Article 11.4 as well as to be made whole.

Employees San Juan, Maxwell, and Smith were not laid off in violation of Article 11.4, and thus

the grievance must be denied as to them. Although employee Jones was laid off out of seniority,

the City and the Union reached an agreement that there would be no challenge to her layoff if the

City agreed not to contest her unemployment benefits. In light of this agreement, the grievance

must be denied as to Ms. Jones as well.


AWARD

Having carefully considered the evidence and argument in its entirety, I hereby render the

following AWARD:

1. The City violated the Agreement by failing to comply with Article 11.4 in the

layoff out of seniority of David Nelson and Tom Oreiro, as well as in not affording Chris St.

Romain and Ray Navarette an opportunity to bump back to a previously held position on the

basis of overall City seniority;

2. The City violated the Agreement by laying off Katie Jones out of seniority order,

but the parties reached a resolution of her claim; and

3. The City did not violate the Agreement by laying off Orlando San Juan, Amy

Maxwell, or Jennifer Smith; therefore,

4. The grievance is granted as to employees Nelson, Oreiro, St. Romain, and

Navarette and denied as to employees Jones, San Juan, Maxwell, and Smith.

5. Mssrs. Nelson and Oreiro shall be promptly reinstated without loss of seniority

and shall be made whole for lost wages and benefits, less customary offsets and deductions;

Mssrs. St. Romain and Navarette shall promptly be afforded an opportunity to bump back to a

previously held position for which they were qualified as of December 1, 2010 and for which

they held greater overall City seniority than an employee then occupying that position; if

successful in bumping into such a position, Mssrs. St. Romain and Navarette shall be promptly

reinstated without loss of seniority and shall be made whole for lost wages and benefits, less

customary offsets and deductions;

6. The matter is remanded to the parties for an attempt to agree on implementation

of the remedy according to the principles set forth in this AWARD; and

7. The Arbitrator will retain jurisdiction for the sole purpose of resolving any

disputes over remedy that the parties are unable to resolve on their own; either party may invoke

this reserved jurisdiction by fax or email sent (or letter postmarked) within ninety (90) days of

the date of this Award (original to the Arbitrator, copy to the other party) or within such

reasonable extensions as the parties may mutually agree (with prompt notice to the Arbitrator) or

that the Arbitrator may order for good cause shown; and

//

//

//

//


8. Consistent with the terms of their Agreement, Article 4.16, the parties shall bear

the fees and expenses of the Arbitrator in equal proportion.

Dated this 13th

day of January, 2012

Michael E. Cavanaugh, J.D.

Arbitrator

cobi v. iam reorganization award 01-13-2012

Documents