2019 - 2023 DSA Memorandum of Understanding: Article 30: Grievance Procedure

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30.1 Purpose

County and Association agree to this Grievance Procedure in order to provide an orderly procedure to resolve employee grievances promptly. This procedure shall become available for grievances which occur after the Board of Supervisors adopts a resolution implementing this Memorandum.

Appendix B contains the Departmental Grievance Procedure, used for complaints concerning alleged violations or misapplications of one or more written departmental policies.

30.2 Definitions

A grievance is a claim by an employee, a group of employees, or the Association on behalf of an employee(s), concerning the interpretation, application or an alleged violation of an expressed provision of this Memorandum. All other complaints are specifically excluded from this procedure including but not limited to, complaints which arise from the following: all disciplinary actions; all matters concerning employment examinations; all other matters subject to the jurisdiction of the Civil Service Commission; performance review appraisals or denial of a merit increase, except as provided in Article 7.19; provisions of the Fair Labor Standards Act; and any provision of this Memorandum specifically identified as not grievable.
Day shall mean regular County business days, Monday through Friday, 8:00 a.m. to 5:00 p.m.
A “grievant” shall mean an employee, a group of employees or the Association who in good faith has an actual grievance with County over a grievable matter as defined in Article 30.2 above.

The Association may file a grievance without naming an individual employee in the grievance provided the grievance alleges a violation of a right or benefit granted the Association under Article 5 of this Memorandum.

30.3 Representation

At any step of the grievance procedure, the employee may represent him/herself, or may be represented by an Association representative who may be a County employee or a non-County employee.

The County agrees to abide by the provisions of the Government Code Section 3300 et seq the Public Safety Officer’s Procedural Bill of Rights and all amendments that may be legislated during the term of this agreement.

30.4 Initiation Deadline

The grievance must be initiated within 10 days from the date of the action or occurrence giving rise to the grievance or within 10 days of when the grievant knew of or could have reasonably discovered such action or occurrence.

30.5 Time Limits

Time limits specified in each step of the procedure shall be strictly observed and may only be extended by mutual agreement of the parties in writing. Failure of a grievant to observe a time limit shall terminate the grievance. Failure of the party to whom the grievance is submitted to observe the time limits shall give the grievant the right to move the grievance to the next level.

30.6 First Step

The grievance shall first be discussed on an informal basis by the grievant with the employee’s immediate supervisor within the ten (10) day timeline set forth in Section 30.4. The immediate supervisor shall respond within ten (10) days. Every effort shall be made by the parties to resolve the grievance at this level and may include conferences among supervisory or administrative personnel. Such discussions will be held whenever possible during the grievant’s work hours.

30.7 Second Step Grievance

In the event the grievant believes the grievance has not been satisfactorily resolved, the grievant shall submit the grievance in writing, with a copy to the County’s Employee Relations Manager, to the immediate supervisor within five (5) days after receipt of the immediate supervisor’s response. The written grievance shall:

Fully describe the grievance and how the grievant is/was adversely affected by the County;
Set forth the specific section(s) of this Memorandum allegedly violated;
Indicate the date(s) of the incident(s) grieved; and
Specify the remedy or solution to the grievance sought by the grievant.

30.8 Second Step Response

The written grievance shall be responded to in writing by the immediate supervisor within seven (7) days from the time the written grievance is received. The supervisor shall send a copy of the response to the Employee Relations Manager. The written response shall include:

A complete statement of the immediate supervisor’s position and the facts upon which it is based; and
The remedy or correction which has been offered, if any.

30.9 Third Step Grievance

If the grievant is not satisfied with the response at Step Two, the grievant may appeal the decision to the next higher level of supervision (identified by the Department Head) and to the Department Head, with a copy to the Employee Relations Manager, within seven (7) days after receipt of the written response at Step Two.

30.10 Third Step Response

Within ten (10) days after receiving the completed grievance form, the person occupying the next higher level of supervision together with the Department Head, or representative, shall meet with the grievant and thoroughly discuss the grievance. The Department Head shall give a written decision to the grievant within fifteen (15) days after the discussion and send a copy of the decision to the Employee Relations Manager.

30.11 Mediation

Prior to an arbitration hearing, the parties may mutually agree to request the assistance of a mediator from the State Conciliation Service in an attempt to resolve the grievance. The mediator shall have no authority to resolve the grievance except by written agreement of the Association and the County. In the event the grievance is not resolved, neither stipulations, admissions, settlement proposals nor concessions, agreed to or offered during mediation, shall be admissible in a subsequent hearing.

30.12 Arbitrable Grievances

A grievance which directly and primarily involves the application, alleged violation, or interpretation of this Memorandum, except as otherwise provided in this Memorandum, is arbitrable. If the grievance is submitted to arbitration by the Association, neither offers of settlement nor concessions for settlement made during the grievance procedure steps prior to mediation shall be admissible in arbitration.

30.13 Selection of Arbitrator

Following completion of the third step of the grievance procedure, if the grievance is subject to arbitration and remains unresolved, the Association on behalf of the grievant may request arbitration. The request for arbitration must be given to the County Counsel and the Employee Relations Manager in writing within 15 days of the receipt of the response from Step Three. An arbitrator may be selected by mutual agreement of the Association and County.

If the County and the Association are unable to reach a mutual agreement on the selection on an arbitrator within 24 calendar days from the date the request for arbitration is submitted to County Counsel and the Employee Relations Manager the arbitrator next on the list of qualified arbitrators shall be automatically appointed. Once an arbitrator has been appointed and utilized for an arbitration, that arbitrator shall be placed at the bottom of the list. The list of qualified arbitrators is as follows:

Norman Brand,
Barry Winograd,
Robert Bergeson.

During the term of this MOU, the parties may agree to add two additional arbitrators to the above list of qualified arbitrators.

Both the Association and the County shall have one preemptory challenge per arbitration. No party shall have more than one preemptory challenge per arbitration. In the event that such a challenge is made, the parties agree that the arbitrator next in order on the panel list shall be appointed.

If a selected arbitrator is not available to schedule dates during the 90 calendar days after the arbitration is assigned, the arbitrator next in order on the panel list shall be appointed. The parties may mutually agree to waive this 90 calendar day time requirement.

If any arbitrator on the panel becomes permanently unavailable, the parties shall mutually agree on a replacement arbitrator for the panel. In the event the parties are unable to reach agreement on a replacement arbitrator, the parties shall submit a request to the California State Conciliation Service for a list of eleven (11) qualified arbitrators. The parties shall select the replacement arbitrator by alternately striking names with the first strike determined by chance.

The moving party shall, within fourteen (14) days of submitting a written request for arbitration, begin the process for selecting an arbitrator and scheduling a hearing date. An extension of the fourteen (14) day timeline must be requested in writing by either party and agreed upon by both parties. Failure to comply with the timelines set forth in this section or other timeline mutually agreed upon by the parties shall immediately terminate the grievance and all rights provided under the grievance procedure.

30.14 Arbitration Issues

The parties shall, within 30 days following the receipt of a written request for arbitration, exchange in writing their understanding of the questions to be submitted to arbitration. Thereafter, the parties to the arbitration shall use their best efforts to exchange a written summary of the evidence they intend to offer and to reach agreement on and reduce to writing the question or questions to be submitted to arbitration. The agreed upon question or questions, if agreement is reached, together with the exchanged summaries of evidence and a list of witnesses to be used by each side, shall be submitted to each other and the arbitrator five days prior to the arbitration hearing.

30.15 Arbitrator’s Authority

The arbitrator shall have no right to amend, modify, nullify, ignore, add to, or subtract from the provisions of the Memorandum. He/she shall consider and make a decision with respect to only the specific issue submitted, and shall have no authority to make a decision on any other issue not so submitted. In the event the arbitrator finds a violation of this Memorandum, he/she shall fashion an appropriate remedy. The arbitrator shall have no authority to substitute his/her judgment for that of the County as to any matter within the County’s discretion under this Memorandum. The decision and award of the arbitrator shall be based solely upon the evidence and arguments presented to the arbitrator by the respective parties.

30.16 Binding Decision – Limit on Monetary Award

Any arbitrator’s monetary award shall be limited to up to a maximum amount of $100,000 measured from the initiation date described in Section 30.4. The arbitrator’s award shall be final and binding to the extent permitted by law.

30.17 Arbitrator’s Decision Due

Unless the parties agree otherwise, the arbitrator shall render the decision in writing within 30 days following the close of the hearing. The decision of the arbitrator is final. If requested by either party, the decision shall be accompanied by findings of fact and conclusions of law.

30.18 Arbitration Expenses Shared

The cost of employing the arbitrator shall be borne equally by the parties to the arbitration. All other costs such as, but not limited to, attorney’s fees and witness fees shall be borne only by the party incurring that cost.