Section 38.  Grievances

38.1 Definition

A grievance is any dispute which involves the interpretation or application of any provision of this Memorandum of Understanding excluding, however, those provisions of this Memorandum of Understanding 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.  If an employee files an EEOC, DFEH or administrative EEO complaint with the EEO Coordinator, the issue will no longer be subject to this grievance procedure, but will be processed in accordance with regulations or procedures governing the processing of said complaints.  An employee may, however, file an EEOC, DFEH or administrative EEO complaint and may also file a grievance if the grounds for the grievance are not based on discrimination and/or sexual harassment.

38.2 Procedure

Grievances shall be processed in the following manner:

1. Step 1.  Department Head and/or the Designated Representative

Any employee who believes that they have a grievance may discuss their complaint with such management official in the department in which they work as the department head may designate.  If the issue is not resolved within the department, or if the employee elects to submit their grievance directly to the Union recognized as the representative of their classification, the procedures hereinafter specified may be invoked, provided, however, that all complaints involving or concerning the payment of compensation shall be in writing to the Human Resources Director.

• Step 2.  Human Resources Director

Any employee 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 twenty-eight (28) calendar days from the date of the employee’s knowledge of an alleged grievance.  Any grievances involving demotion, non-punitive discipline, suspension, reduction in step or dismissal must be received within fourteen (14) calendar days (as determined by postmark) after receipt of written notification of such disciplinary action. The Human Resources Director or their designated representative shall have twenty-eight (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).

• 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 Memorandum of Understanding, the Union may advance the grievance to an Adjustment Board by submitting a written request to the Human Resources Director within twenty-eight (28) calendar days from the date that the grievance is denied at Step 2.  The Adjustment Board shall be comprised of two (2) representatives designated by the Union and two (2) representatives designated by the County.  Either party may request that one member of the Adjustment Board for the other party not be a County employee.  Adjustment boards shall be convened within twenty-eight (28) calendar days from the date such notification is received. A majority decision of the Adjustment Board on all issues, including procedural issues, is final and binding.

• Step 4.  Arbitration

If an Adjustment Board is unable to arrive at a majority decision, the Union may advance the grievance to arbitration by submitting a written request to the Human Resources Director within twenty-eight (28) calendar days after receipt of the Adjustment Board decision.  When arbitration is invoked in a timely manner, an impartial arbitrator shall be designated by mutual agreement between the Union and the Human Resources Director.  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.

e)   If the employee or the Union fails to process a grievance within the specified time limits, the grievance shall be deemed concluded on the basis of the last decision reached, if any, unless the parties have mutually agreed in writing to extend time limits for the applicable step.  If the County fails to respond within the specified time limits, the grievant may appeal to the next step, within the specified time limits, unless the parties have mutually agreed in writing to extend time limits for the applicable step.  Time limits in this article may be extended if mutually agreed upon by the parties in writing and the parties are encouraged to do so if needed.

38.3 Scope of Adjustment Board and Arbitration Decisions

1. 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.
2. 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.
3. Proposals to add to or change this Memorandum of Understanding or written agreements or addenda supplementary hereto shall not be arbitrable and no proposal to modify, amend or terminate this Memorandum of Understanding, nor any matter or subject arising out of or in connection with such proposals, may be referred to arbitration under this Section.  Neither any Adjustment Board nor any arbitrator shall have the power to amend or modify this Memorandum of Understanding or written agreements or addenda supplementary hereto or to establish any new terms or conditions of employment.
4. If the Human Resources Director pursuant to the procedures outlined in subsection 38.2 (b) above, or the Adjustment Board pursuant to the provisions of subsection 38.2 (c) above resolve a grievance which involves suspension or discharge, they may agree to payment for lost time or to 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 employees are not being compensated in accordance with the provisions of this Memorandum of Understanding shall be considered as grievances.  Any other matters of compensation are to be resolved in the meet and confer process if not detailed in the Memorandum of Understanding which results from such meet and confer process shall be deemed withdrawn until the meet and confer process is next opened for such discussion.  No adjustment shall be retroactive for more than sixty (60) calendar days from the date upon which the complaint was filed.

No change in this Memorandum of Understanding 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

1. 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.
2. For the purpose of meeting timelines, postmarks or date of hand delivery shall establish the dates of receipt.
3. If a steward is present at a grievance meeting at any step in the procedure, they 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 employees not covered by this Memorandum of Understanding.

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, an employee who is in danger of physical harm shall not be required to cross the picket line, provided the employee advises his/her supervisor prior to leaving the picketed location, and provided further that an employee 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

1. The provisions of this Section shall not abridge any rights to which an employee 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.
2. All grievances of employees 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 employee, no action under paragraph (b) of subsection 38.2 above shall be taken unless it is determined that the employee is not availing himself/herself of such option.
3. No action under paragraph (b) of subsection 38.2 above 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 Civil Service Commission.
4. 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.