2019 - 2023 ESCMemorandum of Understanding: Article 18: Grievance Procedure

Engineers & Scientists of California

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18.1 Purpose

County and Union agree to this Grievance Procedure in order to provide an orderly procedure to resolve employee grievances promptly.

18.2 Definitions

A grievance is a claim by an employee, a group of employees, or the Union on behalf of an employee(s), concerning the interpretation, application or an alleged violation 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 appeals; all appeals from examinations; performance review evaluation or denial of a merit increase except as provided in Section 12.1; and any provision of this Memorandum specifically identified as not grievable.
For the purposes of the Article 18 grievance procedure only, “Day” shall mean regular County business day (Monday through Friday, absent County holidays).
A “grievant” shall mean an employee, a group of employees or the Union who in good faith has an actual grievance with County over a grievable matter as defined in Section 18.2.

The Union 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 Union under this Memorandum, such as Bulletin Boards ( Section 11.20). At any step of the grievance procedure, the employee may represent him/herself, or may be represented by a Union representative who may be a County employee or a non-County employee. If the Union is a grievant, it shall be represented by an elected officer, steward or labor representative.

18.3 Initiation Deadline

The first step of the grievance procedure must be initiated within fifteen (15) County business days from the date of the action or occurrence giving rise to the grievance or within fifteen (15) County business days of when the grievant knew of or could have reasonably discovered such action or occurrence.

18.4 Time Limits

Time limits specified in this 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.

18.5 Grievance Procedure – Informal Review

Before initiating the first step of the grievance procedure, an individual employee, or group of employees, with or without their representative, may first attempt to resolve the grievance informally. Informal attempts to resolve a grievance shall not extend the time limits, including the Initiation Deadline provided for in Article 18.3 of the grievance procedure

18.6 First Step Grievance

The first step of the grievance procedure will be initiated upon the grievant’s submission of a written request for a first step grievance meeting to the employee’s immediate supervisor.The grievance shall be discussed at a meeting with the grievant and the employee’s immediate supervisor within fifteen (15) County business days from the date of the action or occurrence giving rise to the grievance as provided above. The immediate supervisor shall respond in writing within six (6) County business days. The first step response shall indicate the supervisor, manager, or designee to whom a second step grievance must be submitted. 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.

In the case where the grievance is filed by a group of employees, or by the Union on behalf of a group of employees, or by the Union without naming an individual employee, the first step of the grievance procedure will be initiated upon delivery of written notice of the grievance to the Administrative Services Officer(s) for Human Resources at the department(s) where the action or occurrence giving rise to the grievance took place. The parties will meet within seven (7) County business days, in person or telephone, to discuss the grievance. The County shall respond in writing no later than six (6) County business days after the discussion.

18.7 Second Step Grievance

In the event the grievant(s) believes the grievance has not been satisfactorily resolved at the first step of the grievance procedure, the grievant(s) shall submit the grievance in writing to the supervisor, manager or designee indicated in the first step response with a copy to the Human Resources Department’s Employee Relations Manager within seven (7) County business days after receipt of the first step response. The written grievance shall:

fully describe the grievance and how the grievant is/was adversely affected by the County;
set forth the 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.

18.8 Second Step Response

The written grievance shall be responded to in writing by the supervisor, manager or designee indicated in the first step response within seven (7) days from the time the written grievance is received. The supervisor, manager or designee shall send a copy of the response to the Human Resources Department’s Employee Relations Manager. The written response shall include:

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

18.9 Third Step Grievance

If the grievant is not satisfied with the response at Step Two, the Union may appeal the decision to the Department Head or appointing authority, with a copy to the Director of Human Resources and the Human Resources Department’s Employee Relations Manager, within seven (7) County business days after receipt of the written response at Step Two.

18.10 Third Step Response

Within five (5) County business days after receiving the completed grievance form, the Department Head, appointing authority, or representative, shall meet with the grievant and thoroughly discuss the grievance. The Department Head or appointing authority shall respond to the grievance in writing within fifteen (15) County business days after the discussion and will send a copy of the decision to the Director of Human Resources and the Human Resources Department’s Employee Relations Manager.

18.11 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 Union 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.

18.12 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 Union, neither offers of settlement nor concessions for settlement made during the grievance procedure steps prior to mediation shall be admissible in arbitration.

18.13 Selection of Arbitrator

Following completion of the Third Step of the grievance procedure, if the grievance is subject to arbitration and remains unresolved, the Union on behalf of the grievant may request arbitration. The request for arbitration must be given to the County Counsel and the Director of Labor Relations in writing within fifteen (15) days of the receipt of the response from Step Three. Within thirty (30) days of submitting a written request for arbitration, the Union and the County shall begin the process for selecting an arbitrator and scheduling a hearing date. An extension of the thirty (30)-day timeline must be requested in writing by either party and agreed upon by both parties.

An arbitrator may be selected by mutual agreement of the Union and County. However, should the parties fail to mutually agree on an arbitrator, they shall make a joint request of the State Conciliation Service for a list of five qualified arbitrators. The arbitrator shall be selected from the list by the parties alternately striking names with the first strike determined by chance.

18.14 Arbitration Issues

The parties shall, within thirty (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 (5) days prior to the arbitration hearing.

18.15 Arbitrator’s Authority and Decision

The arbitrator shall have no power to alter, amend, change, add to, or subtract from any of the terms of this Memorandum. The decision and award of the arbitrator shall be made solely upon the evidence and arguments presented to the arbitrator by the respective parties.

18.16 Binding / Non-Binding Decision

The decision of the arbitrator shall be binding upon the Union. To the extent that the award of the arbitrator is not in excess of $5,000 per individual grievant, it is binding on the County. To the extent that such award exceeds $5,000 per individual grievant, it is advisory. If within sixty (60) days of receiving notice of decision and award requiring an expenditure in excess of $5,000 per individual grievant, final action is not taken by the County to implement it, then the arbitrator’s decision and award shall have no force or effect whatsoever as to the amount in excess of $5,000 per individual grievant. Union may then resort to a court of competent jurisdiction to pursue whatever other legal remedies are available to it under the provisions of this Memorandum. If the Union is the grievant, then the $5,000 limit shall apply to each employee who has been identified by the Union and sustained by the arbitrator as employees directly affected by the grievance and the remedy sought and imposed.

18.17 Arbitrator’s Decision Due

Unless the parties agree otherwise, the arbitrator shall render the decision in writing within thirty (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.

18.18 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.