Arbitrator Rules Standard for Review of Out-of-Class Grievances More Liberal Under Unit 7 Contract
Test to be Applied is Substantial Performance, Not 50% of Non-Overlapping Duties
On November 8, 2004, Thomas Reemts a filed a grievance alleging entitlement to out-of-class compensation under Section 15.2 of the CAUSE MOU. Mr. Reemts worked as an Enforcement Representative I (ERI) in a seven (7) county region north of Sacramento.
The grievance passed through the stages of the grievance procedure, ultimately ending up at a binding arbitration hearing between the parties. The crux of the argument on behalf of the employee was that, due to his remote location and workload, and his expertise which was relied upon by both the Department and local law enforcement officials, Mr. Reemts was performing the work of a more advanced Enforcement Representative II (ERII) and was entitled to be compensated accordingly.
The analysis in support of the grievance required the determination as to the extent to which Mr. Reemts had been performing the duties of the higher classification during the course of his job. CSLB and the Department of Personnel Administration argued that a “fifty percent rule” was applicable, meaning that Mr. Reemts was only eligible for out of class compensation if it could be shown that he performed the non-overlapping duties of the higher classification more than fifty percent of the time. This argument was advanced largely due to the fact that DPA had historically applied such a rule and had expressly included such a rule in a number of other bargaining agreements.
At arbitration, I argued the “fifty percent rule” was inapplicable to Unit 7 members or the instant case. Nowhere in Section 15.2 of the CAUSE contract is a “fifty percent rule” mentioned. In fact, I introduced evidence in the form of official bargaining notes and testimony from CAUSE’s Chief Negotiator, Mr. Gary Messing, which showed a “fifty percent” proposal was made by DPA in negotiations and CAUSE had rejected inclusion of such a standard in its contract.
I further argued that unilateral application of such a rule was an attempt by DPA to bind CAUSE to a provision that it was unable to negotiate into the Unit 7 Contract. Instead, I argued that the appropriate analysis was whether the employee substantially assumed the duties and responsibilities of the higher classification. If so, the employee should be entitled to out of class compensation for such work.
Ultimately, the arbitrator was not persuaded that CAUSE had met its burden in demonstrating that Mr. Reemts substantially assumed the duties and responsibilities of the higher, ER II classification. The arbitrator determined that, while Mr. Reemts certainly was an exemplary employee conducting work in a remote location, it could not be said that he substantially performed duties that did not fall within the ER I classification. To succeed on an out-of-class claim, it must still be proven that the duties which were substantially performed did not overlap with the duties of the employee’s existing classification.
While the arbitrator did not grant a remedy in favor of CAUSE in this instance, the determination that a more easily attainable standard is applicable (i.e. substantial performance rather than a formulaic “fifty percent rule”) will be very beneficial to future claims for out-of-class compensation. DPA will no longer be able to unilaterally apply its standard across the board and an examination of out-of-class claims will need to occur on a case-by-case basis utilizing CAUSE’s more liberal standard.
Although Mr. Reemts is disappointed that CAUSE was unable to prevail on his specific claim, he is very appreciative of the efforts put forward by CAUSE Legal on his behalf. We will now refer to the Unit 7 Contract standard for reviewing out-of-class claims as the Reemts standard of review.
Test to be Applied is Substantial Performance, Not 50% of Non-Overlapping Duties
Source: Stephanie H. Zeitlin, Legal Counsel
Date: 4/25/2006
On November 8, 2004, Thomas Reemts a filed a grievance alleging entitlement to out-of-class compensation under Section 15.2 of the CAUSE MOU. Mr. Reemts worked as an Enforcement Representative I (ERI) in a seven (7) county region north of Sacramento.
The grievance passed through the stages of the grievance procedure, ultimately ending up at a binding arbitration hearing between the parties. The crux of the argument on behalf of the employee was that, due to his remote location and workload, and his expertise which was relied upon by both the Department and local law enforcement officials, Mr. Reemts was performing the work of a more advanced Enforcement Representative II (ERII) and was entitled to be compensated accordingly.
The analysis in support of the grievance required the determination as to the extent to which Mr. Reemts had been performing the duties of the higher classification during the course of his job. CSLB and the Department of Personnel Administration argued that a “fifty percent rule” was applicable, meaning that Mr. Reemts was only eligible for out of class compensation if it could be shown that he performed the non-overlapping duties of the higher classification more than fifty percent of the time. This argument was advanced largely due to the fact that DPA had historically applied such a rule and had expressly included such a rule in a number of other bargaining agreements.
At arbitration, I argued the “fifty percent rule” was inapplicable to Unit 7 members or the instant case. Nowhere in Section 15.2 of the CAUSE contract is a “fifty percent rule” mentioned. In fact, I introduced evidence in the form of official bargaining notes and testimony from CAUSE’s Chief Negotiator, Mr. Gary Messing, which showed a “fifty percent” proposal was made by DPA in negotiations and CAUSE had rejected inclusion of such a standard in its contract.
I further argued that unilateral application of such a rule was an attempt by DPA to bind CAUSE to a provision that it was unable to negotiate into the Unit 7 Contract. Instead, I argued that the appropriate analysis was whether the employee substantially assumed the duties and responsibilities of the higher classification. If so, the employee should be entitled to out of class compensation for such work.
Ultimately, the arbitrator was not persuaded that CAUSE had met its burden in demonstrating that Mr. Reemts substantially assumed the duties and responsibilities of the higher, ER II classification. The arbitrator determined that, while Mr. Reemts certainly was an exemplary employee conducting work in a remote location, it could not be said that he substantially performed duties that did not fall within the ER I classification. To succeed on an out-of-class claim, it must still be proven that the duties which were substantially performed did not overlap with the duties of the employee’s existing classification.
While the arbitrator did not grant a remedy in favor of CAUSE in this instance, the determination that a more easily attainable standard is applicable (i.e. substantial performance rather than a formulaic “fifty percent rule”) will be very beneficial to future claims for out-of-class compensation. DPA will no longer be able to unilaterally apply its standard across the board and an examination of out-of-class claims will need to occur on a case-by-case basis utilizing CAUSE’s more liberal standard.
Although Mr. Reemts is disappointed that CAUSE was unable to prevail on his specific claim, he is very appreciative of the efforts put forward by CAUSE Legal on his behalf. We will now refer to the Unit 7 Contract standard for reviewing out-of-class claims as the Reemts standard of review.
| contactus@cslea.com | (800) 551-1414 | 2029 H Street • Sacramento, CA 95811 |