SEIU 38: Grievances

38.1 Definition
A grievance is any dispute which involves the interpretation or application of any provision of this MOU excluding, however, those provisions of this MOU which specifically provide that the decision of any County official shall be final, the interpretation or application of those provisions not being subject to the grievance procedure.

 

38.2 Procedure
Grievances shall be processed in the following manner:

(a) Step 1. Department Head and/or the Designated Representative

Any worker who believes that he/she has a grievance may discuss his/her complaint with such management official in the department in which he/she works as the department head designates. If the issue is not resolved within the department, or if the worker elects to submit the grievance directly to the Union, the procedures hereinafter specified may be invoked, provided that all complaints involving or concerning the payment of compensation shall be in writing to the Human Resources Director.

(b) Step 2. Human Resources Director

Any worker or any official of the Union may notify the Human Resources Director in writing that a grievance exists, stating the particulars of the grievance and, if possible, the nature of the determination desired. Such notification must be filed (as determined by postmark) within 28 calendar days from the date of the worker’s knowledge of an alleged grievance. Any grievances involving demotion, suspension, non punitive discipline or dismissal must be filed within 14 calendar days (as determined by postmark) after receipt of written notification of such disciplinary action. The Human Resources Director or his/her designated representative shall have 28 calendar days in which to investigate the merits of the complaint, to meet with the complainant and, if the complainant is not the Union, to meet also with the officials of the Union, and to settle the grievance. No grievance may be processed under paragraph (c) below which has not first been filed and investigated in accordance with this paragraph (b).

(c) Step 3. Adjustment Board

If the parties are unable to reach a mutually satisfactory accord on any grievance which arises and is presented during the term of this MOU, the Union may advance the grievance to an Adjustment Board by submitting a written request to the Human Resources Director within 28 calendar days from the date that the grievance is denied at Step 2. The Adjustment Board shall be comprised of 2 representatives designated by the Union and 2 representatives designated by the County. Adjustment Boards shall be convened within 28 calendar days from the date such notification is received.

(d) Step 4. Arbitration

In the event an Adjustment Board is unable to reach a mutually satisfactory accord on a grievance presented to it, the issue may be advanced to arbitration, if within 28 calendar days of the date upon which the Adjustment Board hearing was held, the moving party notifies the other in writing of its desire to arbitrate. The issue shall be submitted to an arbitrator mutually agreed upon by the parties or, failing mutual agreement, to that arbitrator who is selected by lot from an agreed upon panel. The arbitrator shall determine the issue according to the laws and case law of the State of California.

If the arbitrator so selected is not available for a hearing (at a time acceptable to the Union and the County) within 90 calendar days of the date on which the arbitrator is contacted, the parties may, by mutual agreement, select an alternate arbitrator, or failing agreement, select another arbitrator by lot from the same panel. The parties may also, by mutual agreement, elect to extend the 90 days referenced above and use the arbitrator originally selected by lot.

The fees and expenses of the arbitrator and of the Court Reporter shall be shared equally by the Union and the County. Each party, however, shall bear the costs of its own presentation, including preparation and post-hearing briefs, if any.

 

38.3 Scope of Adjustment Board and Arbitration Decisions
Decisions of Adjustment Boards and arbitrators on matters properly before them shall be final and binding on the parties hereto, to the extent permitted by the Charter of the County.

No Adjustment Board and no arbitrator shall entertain, hear, decide or make recommendations on any dispute unless such dispute involves a position in a unit represented by the Union which has been certified as the recognized employee organization for such unit and unless such dispute falls within the definition of a grievance as set forth in subsection 38.1.

Proposals to add to or change this MOU or written agreements or addenda supplementary hereto shall not be arbitrable and no proposal to modify, amend or terminate this MOU, nor any matter or subject arising out of or in connection with such proposals, may be referred to arbitration under this Section. Neither Adjustment Boards nor arbitrators shall have the power to amend or modify this MOU or written agreements or addenda supplementary hereto or to establish any new terms or conditions of employment.

If the Human Resources Director pursuant to the procedures outlined in subsection 38.2 (b) or the Adjustment Board pursuant to the provisions of subsection 38.2 (c) resolve a grievance which involves suspension or discharge, they may agree to payment for lost time or reinstatement with or without payment for lost time.

 

38.4 Compensation Complaints
All complaints involving or concerning the payment of compensation shall be initially filed in writing with the Human Resources Director. Only complaints which allege that workers are not being compensated in accordance with the provisions of this MOU shall be considered as grievances. No adjustment shall be retroactive for more than 60 calendar days from the date upon which the complaint was filed.

No change in this MOU or interpretations thereof (except interpretations resulting from Adjustment Board or arbitration proceedings hereunder) will be recognized unless agreed to by the County and the Union.

 

38.5 Grievance Procedures/Practices
Irrespective of the defenses of timeliness and/or arbitrability, all issues and remedies shall be fully discussed and/or responded to at each level, prior to and including arbitration, without prejudice to those defenses.
For the purpose of meeting timelines, postmarks or date of hand delivery shall establish the dates of receipt.

If a steward is present at a grievance meeting at any step in the procedure, he/she will be copied on the applicable grievance-related correspondence. If arbitration has been invoked, stewards will not be copied on correspondence to attorneys involved in the arbitration process.

 

38.6 No Strike
The Union, its members and representatives, agree that it and they will not engage in, authorize, sanction or support any strike, slowdown, stoppage of work, curtailment of production, concerted refusal of overtime work, refusal to operate designated equipment (provided such equipment is safe and sound) or to perform customary duties; and neither the Union nor any representatives thereof shall engage in job action for the purpose of effecting changes in the directives or decisions of management of the County, nor to effect a change of personnel or operations of management or of workers not covered by this MOU.

In the case of a legally declared lawful strike against a private sector employer which has been sanctioned and approved by the labor body or council having jurisdiction, a worker who is in danger of physical harm shall not be required to cross the picket line, provided the worker advises his/her supervisor prior to leaving the picketed location, and provided further that a worker may be required to cross a picket line where the performance of his/her duties is of an emergency nature and/or failure to perform such duties might cause or aggravate a danger to public health or safety.

 

38.7 County Charter and Civil Service Commission
The provisions of this Section shall not abridge any rights to which a worker may be entitled under the County Charter, nor shall it be administered in a manner which would abrogate any power which, under the County Charter may be within the sole province and discretion of the Civil Service Commission.

All grievances of workers in representation units represented by the Union shall be processed under this Section. If the County Charter requires that a differing option be available to the worker, no action under paragraph (b) of subsection 37.2 above shall be taken unless it is determined that the worker is not availing himself/herself of such option.

No action under paragraph (b) of subsection 37.2 shall be taken if action on the complaint or grievance has been taken by the Civil Service Commission, or if the complaint or grievance is pending before the Commission.

If any award by an Adjustment Board or arbitrator requires action by the Board of Supervisors or the Civil Service Commission before it can be placed in effect, the County Manager and the Human Resources Department Director will recommend to the Board of Supervisors or the Civil Service Commission, as appropriate, that it follow such award.