2018 - 2019 SEIUMemorandum of Understanding:   Article 21: Grievance Procedure

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• 21.1 Grievance – Purpose of Procedure
• 21.2 Grievance – Definition of
• 21.3 Grievance – Standing to Initiate
• 21.4 Grievance – Procedure Initiation
• 21.5 Grievance – Time Limits
• 21.6 Grievance – First Step of
• 21.7 Grievance – Second Step of
  
  • 21.7.1 Grievance – Timing & Rationale – Second Step
  • 21.7.2 Grievance – Response to Second Step
• 21.8 Grievance – Third Step of
  
  • 21.8.1 Grievance – Third Step – Timing
  • 21.8.2 Grievance – Third Step – Response to
• 21.9 Mediation
  
  • 21.9.1 Mediation – Mutual Agreement
  • 21.9.2 Mediation – Alternative Methods to
• 21.10 Arbitration of Grievance
  
  • 21.10.1 Arbitrability of Grievance
  • 21.10.2 Arbitration – Timing of
  • 21.10.3 Arbitration – Selection of Arbitrator
  • 21.10.4 Arbitration Panel – Selection of Arbitrator
• 21.11 Arbitration – Submission Statement
• 21.12 Arbitration – Scope of Arbitration
• 21.13 Arbitration – Arbitrator’s Decision
• 21.14 Arbitration – Expenses
• 21.15 Grievance – Non-Retaliation
• 21.16 Grievance – Maintenance of Performance Standards by Grievant

Read Next: Article 22: Full Performance, No Strike

The County and the Union agree to this Grievance Procedure in order to provide an orderly procedure to promptly resolve grievances of employees covered by this Memorandum.

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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 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 actions, including those that the Union claims are based on discrimination for Union activity (except written reprimands issued to current Union directors, officers and stewards, as identified in the last quarterly list given to the County by the Union that the Union claims are based upon discrimination for Union activity); all appeals arising from examinations; performance evaluation or denial of a merit increase; placement of volunteers; working out of class; provisions of Fair Labor Standards Act; safety related issues; any provision of this Memorandum specifically identified as not grievable.

Day shall mean calendar day.

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An individual employee or the Union who, on behalf of an employee(s), in good faith has an actual grievance with the County over a grievable matter as defined in Section 21.2 may file a grievance. The Union may file a grievance without naming an individual employee if the alleged grievance involves a right or benefit granted the Union under this Memorandum, such as bulletin boards (Section 4.5) and Union Business (Section 4.12).

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.

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

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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.

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The grievance shall first be discussed on an informal basis by the grievant with the employee’s immediate supervisor within fifteen (15) days from the date of the action causing the grievance as provided in Section 21.5 above. The immediate supervisor shall respond within six (6) 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.

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21.7.1 Grievance – Timing & Rationale – Second Step

In the event the employee believes the grievance has not been satisfactorily resolved, the employee shall submit the grievance in writing, with a  copy to County Human Resources, the  immediate supervisor and the Union to the second level supervisor or next level designee (who is not represented by SEIU) within seven (7) days after receipt of the immediate supervisor’s response. Such written grievance shall:

1. fully describe the grievance and how the employee(s) was/were adversely affected by the County;
2. set forth the Section(s) of this Memorandum allegedly violated;
3. indicate the date(s) of the incident(s) grieved; and
4. specify the remedy or solution to the grievance sought by the employee(s).

21.7.2 Grievance – Response To Second Step

The written grievance shall be responded to in writing by the second level supervisor or next level designee (who is not represented by SEIU) within seven (7) days from the time the written grievance is received and a copy sent to County Human Resources, the immediate supervisor and the Union. The written response shall include:

1. a complete statement of the respondent’s position and the facts upon which it is based; and
2. the remedy or correction which has been offered, if any.

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21.8.1 Grievance – Third Step – Timing

If the grievant is not satisfied with the response at Step Two, the grievant may appeal the decision to the department/agency head, with a copy to County Human Resources and the Union within seven (7) days of receipt of the written response at Step Two.

21.8.2 Grievance – Third Step – Response To

Within five (5) calendar days after receiving the completed grievance form, the department/agency head or his/her designated representative shall meet with the employee, and they shall thoroughly discuss the grievance. The department/agency head shall give his/her decision within 15 days after the discussion and send a copy of the decision to Human Resources and the Union.

When a grievance is not resolved at the second step and is advanced to the third step (department head), the department head or designated representative may request in writing additional time for mid-management to work on a resolution.

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21.9.1 Mediation – Mutual Agreement

Prior to an arbitration hearing, the parties, by mutual agreement, may 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 agreement of the County and the Union. In the event the grievance is not resolved, neither stipulations, admissions, settlement proposals nor concessions agreed to or offered during mediation shall be admissible at a subsequent hearing.

21.9.2 Mediation – Alternative Methods To

The parties may also mutually agree to alternative methods of resolving grievances, including but not limited to informal hearings, and/or an ad hoc Board of Adjustment proceeding.

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21.10.1 Arbitrability Of Grievance

Grievances directly and primarily involving the application, alleged violation, or interpretation of this Memorandum, except as otherwise provided in this Memorandum, are arbitrable. If a grievance is submitted to arbitration by the Union, neither offer for settlement nor concessions for settlement made during the grievance procedure shall be admissible in arbitration.

21.10.2 Arbitration – Timing Of

Following completion of the Third Step of the grievance procedure provided herein, 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 written and given to the County Counsel and the Employee Relations Manager, in writing, within 15 days of the receipt of the response from Step Three.

The moving party shall, within thirty (30) days of submitting a written request for arbitration, 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. 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.

21.10.3 Arbitration – Selection Of Arbitrator

An arbitrator may be selected by mutual agreement of the County and the Union.

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21.10.4 Arbitration Panel – Selection Of Arbitrator

If the County and the Union are unable to reach a mutual agreement on the selection of an arbitrator within 24 calendar days from the date the request for arbitration is submitted to County Counsel and the Employee Relations Manager (Section 21.10.2), the arbitrator next on this 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.

• Chris Burdick
• Fred D’Orazio
• Carol Vendrillo
• Luella Nelson
• Barry Winograd

Both the Union 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 automatically 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 this panel list shall be automatically appointed. The parties may mutually agree to waive the 90 calendar days.

If any arbitrator on the panel becomes permanently unavailable, the parties shall mutually agree on a replacement arbitrator. 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.

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The parties shall, 30 days following the receipt of a written request for arbitration, exchange in writing their understanding of the question or questions submitted for 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 submitted for arbitration. The agreed 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.

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The decision and award of the arbitrator shall be made solely upon the evidence and arguments presented to the arbitrator by the respective parties.

The arbitrator shall not add to, detract from, or modify the language of the collective bargaining agreement or modify the language of departmental rules and regulations in considering any issue properly before them.

The arbitrator’s award shall be limited to the precise issues raised by the grievance and submitted by the parties. The arbitrator shall have no authority to consider any other issue not submitted by the parties.

Any arbitrator’s monetary award in favor of the grievant shall be limited to up to a maximum amount of $100,000 measured from the initiation date described in Section 21.4.

The arbitrator’s award shall be final and binding to the extent permitted by law.

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Unless the parties agree otherwise, the arbitrator shall render the decision in writing within 30 days following  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.

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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, attorneys’ fees and witness fees shall be borne only by the party incurring that cost.

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Employees who file a grievance or who participate in a grievance procedure shall be free from harassment or retaliation as a result of filing or participating in a grievance.

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Employees who file a grievance are in no manner excused or exempt from performance standards of the job. Job performance standards will be maintained throughout and following any action undertaken as a result of this grievance procedure.

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