COBI v. IAM Reorganization Award 01-13-2012
Transcript of COBI v. IAM Reorganization Award 01-13-2012
IN ARBITRATION BEFORE
MICHAEL E. CAVANAUGH, J.D.
INTERNATIONAL ASSOCIATION OF, )
MACHINISTS, DIST. LODGE NO. )
160, )
)
Union, ) ARBITRATOR’S DECISION
) AND AWARD
and )
)
CITY OF BAINBRIDGE ISLAND, )
WASHINGTON, )
)
Employer. )
)
(Reorganization Grievance) )
For the Employer:
Sofia D. Mabee
Summit Law Group PLLC
315 Fifth Avenue South, Suite 1000
Seattle, WA 98104
For the Union:
Jacob H. Black
SaNni M-K Lemonidis
Robblee Brennan & Detwiler, PLLP
2101 Fourth Avenue, Suite 200
Seattle, WA 98121
I. INTRODUCTION
The City of Bainbridge Island, Washington undertook a substantial reorganization of its
workforce in late 2010 in response to continuing revenue shortfalls as a result of the bad
economy. The City “abrogated” some “positions,” as well as several entire job “classifications.”
Then, the City issued layoff notices to employees who occupied the abrogated positions and to
every employee in each of the abrogated classifications. Next, the City “reorganized” the
City of Bainbridge Island/IAM (Reorganization) P a g e | 2
available work into revised classifications designed to streamline the organizational structure and
to preserve the City’s ability to perform its core functions with a reduced workforce. Employees,
including those who had received layoff notices, were invited to apply for these revised
positions, and while many were successful, eight employees were not, and their layoffs became
final December 31, 2010.
The Union contends that the entire process constituted a “layoff” or “reclassification” of
positions due to a workforce reduction, and because a number of the employees who successfully
applied for the revised positions were less senior in their prior classifications than the employees
who were unsuccessful, the Union asserts that the process violated Article 11.4 of the
Agreement. That provision requires that layoffs and reclassifications be accomplished strictly by
order of seniority.1 The City argues, by contrast, that the management rights clause of the
Agreement empowered it to take these actions to respond to a severe economic crisis and that the
reorganization process did not violate any express provision of the CBA. The parties were unable
to resolve the resulting grievance in the preliminary steps of their Grievance and Arbitration
procedure,2 and these proceedings followed.
At a hearing held at City Hall on October 19, 20, and 21, 2011 the parties had full
opportunity to present evidence and argument, including the opportunity to cross examine
witnesses. The proceedings were transcribed by a certified court reporter, and I have carefully
reviewed the transcript in the course of my analysis of the evidence and argument. Counsel filed
1 The Union has also argued that as a practical matter, the City could have reached the same result—and complied
with the CBA—by laying off the required number of employees according to seniority within classification and then
reorganizing the work among the remaining employees. The City might also have complied with the Agreement, the
Union says, by populating the new classifications according to the employees’ relative seniority in the substantially
similar prior classifications which the City had abrogated.
2 Apparently, the City and the Union reached a tentative resolution of the issues a few months after the changes had
been implemented, but the bargaining unit voted not to ratify that agreement. The terms of the tentative settlement
were not made part of the record before me, and consequently they have not influenced my decision here.
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simultaneous electronic post-hearing briefs December 13, 2011, and with my receipt of the
briefs, the record closed. Having carefully considered the evidence and argument in its entirety, I
am now prepared to render the following Decision and Award.
II. STATEMENT OF THE ISSUE
The parties were unable to agree on a precise statement of the issue to be decided. The
Union proposed a broad issue statement, i.e. whether the City violated the Agreement in the
actions it took as part of the reorganization. The City, on the other hand, proposed a statement of
the issue that focused on whether one or more of the specific contractual provisions the Union
had cited in its formal grievance were violated by the City. In the end, it is sufficient to frame the
issue as follows:
Did the City’s reorganization in late 2010 violate the parties’ CBA as alleged in
the grievance? If so, what is the proper remedy?
III. FACTS
The Union represents non-management employees of the City (with the exception of
commissioned personnel within the Police Department), including employees in finance,
planning and development, public works, and the municipal court. Over the course of several
years prior to this dispute, the Union and the City had negotiated with respect to the number of
employees within the unit and the titles and content of their job classifications. For example, the
parties negotiated a reorganization in Public Works in 2007 that resulted in the transfer of some
unit employees to new supervisory positions outside the bargaining unit while at the same time
creating several new Crew Chief positions within the unit. In addition, there were two rounds of
layoffs in 2009, accomplished by seniority within classification, totaling ten bargaining unit
employees. Tr. at 633-35; see also, Exh. E-46.
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Nevertheless, the City’s finances continued to present challenges, and in mid-2010, Paul
Miller, the Chief Shop Steward for the Union, and Brenda Bauer, the recently-appointed Interim
City Manager, negotiated a one-year extension of a CBA that was scheduled to expire at the end
of 2010. As part of the agreement, the Union agreed to forego a scheduled COLA adjustment in
exchange for a guarantee that the City would not impose furloughs on unit employees during the
remainder of the CBA. The parties also agreed that employees would switch to less expensive
health plans (with some adjustment to the cost of dependent coverage). These changes and the
extension of the CBA were formalized in a written Contract Extension Agreement. Exh. E-3.
By the Fall of 2010, however, it became clear to the City that further reductions in labor
costs would be necessary to meet the City Council’s goal of continuing to provide essential
services while substantially increasing operating reserves. At Bauer’s request, the Union agreed
to the City’s plan to create a Voluntary Separation Program (“VSP”) which was designed to
provide incentives for employees to voluntarily leave City employment—and thus decrease the
need for additional involuntary reductions in force. Only two employees took advantage of the
VSP program, however. Tr. at 43. At the end of August 2010, the City Council made specific
budgetary decisions that were projected to require between $3M-3.5M in additional revenue
and/or cuts, and the Council indicated that it preferred cuts.3 In an email to all employees on
September 1, Bauer wrote that the Council’s directives almost certainly would mean “significant
layoffs, reductions in service, and major reorganization” in the City. Exhs. E-8, U-3.
3 In mid-August, Moody’s had downgraded the City’s credit rating, apparently based on the fact that the City was
ending the year with an operating deficit—for the second consecutive year. The Moody’s downgrade endangered the
City’s ability to borrow funds for capital expenditures—either credit would not be available (e.g. the State refused to
lend funds to purchase two police vehicles) or the City would have to pay higher interest rates for any bonds it was
able to sell. Consequently, the Council set a goal of increasing reserves to $4.8 M in two years and directed City
Manager Bauer to determine which “core functions” the City was required to offer, and which expenditures could be
severely reduced or eliminated.
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Bauer met with Chief Shop Steward Miller and Union Rep Mike Goddard on September
24 to discuss the City’s plans, and she provided a list of 38 employees “at risk” of being laid off
(which included Miller). The list indicated that certain “positions” and entire “classifications”
would be “abrogated.” Exh. U-4 at 2. Bauer testified that she showed the Union “before and
after” charts of the reorganization at the meeting because she wanted them “to see how we’re
reorganizing the work” as well as the City’s intention to adopt changes in the “reporting
relationships.” Tr. at 341. Miller testified, however, that Bauer told the Union that the details of
the reorganization would not be set until after the Council formally approved the budget. Tr. at
47. In any event, shortly after the meeting, the City issued “at risk” notices to the 38 employees
on the list,4 and Bauer sent an email to all employees noting that “the budget proposal includes
reductions of or changes to positions in every department, and some consolidation of groups or
services.” Exh. U-5. She also wrote that she hoped the Council would make “final decisions by
the end of November, at which time we will make any official notifications regarding any hours
reductions, bumping, or layoff.” Id.
The proposed reorganization was presented to the City Council on September 29, 2010,
and Bauer continued to discuss the proposal with the Union, including a meeting in early
October with shop stewards Paul Miller, Mark Bartholomew, and Debbie Lee. Bauer testified
that none of the Union participants expressed any objections to the details of the proposal at that
4 The “at risk” list included employees whose classifications were slated for “abrogation of classification” (26
employees in five classifications), “schedule reduction” (five employees in four classifications), “abrogation of
position” (three employees in three classifications), and “abrogation of 1 position – least senior” (four employees in
four classifications). Exh. E-17. On its face, the “at risk” list does not define “abrogation” or the differences, if any,
among the various kinds of “abrogations” the City contemplated, and Chief Steward Miller testified that he did not
fully understand what the City intended. The normal dictionary definition of “to abrogate,” on the other hand, is “to
abolish by formal or official means.” Webster’s Encyclopedic Dictionary of the English Language (Portland House,
New York, 1989); see also, Black’s Law Dictionary (Rev. 4th
Ed., West, 1968) (“the destruction or annulling of a
former law, by an act of legislative power”).
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time. By letter dated October 22, 2010, however, Business Representative Mike Goddard
objected that the City’s reorganization plan violated the Agreement in several respects. For
example, Goddard wrote5
We view this as a layoff/work force reduction and expect article 11.4 and all other
applicable articles of the collective bargaining agreement to be adhered to.
Rehiring into the new positions shall be done in order of seniority. Article 11.
Exh. E-21.
Similarly, the letter asserted
Many of the new positions appear to be filling the same basic function as the
abrogated positions. For example, an employee who previously held an
Engineering Technician position and has bump rights to the Engineering
Technician classification shall also have bumping rights to the proposed Project
Coordinator position. Article 11.
Id. The letter also contained a request to bargain the impacts of the proposal on the bargaining
unit to “ensure that we are in compliance with laws requiring negotiation when there is a change
in working conditions as well as to relieve any undue stress for our membership.” Bauer
responded by letter dated October 29, 2010 expressing a desire “to work cooperatively on these
issues” which, she wrote, are “likely to require a thoughtful review of the terms of our collective
bargaining agreement.” Exh. E-22. She invited Mr. Goddard to contact her assistant to set up a
meeting to discuss the issues, but it is undisputed that Mr. Goddard never did so.
The Council formally adopted the reorganization plan at its November 17, 2010 meeting.
The City then set about the process of drafting job descriptions6 for the new classifications, a
process that was hampered by the Thanksgiving holiday and a severe snow storm that left
5 Actually, Paul Miller testified that he drafted the letter for Mr. Goddard’s signature. Mr. Goddard himself did not
appear or testify at the hearing.
6 Miller testified that on several occasions earlier in the process, he had asked for job descriptions but Bauer told him
that the City’s plans were subject to change by the Council, and thus the drafting of final job descriptions would
have to await final Council action on the reorganization plan.
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Bainbridge Island without power for several days. Bauer emailed draft job descriptions to Miller
on November 30 and indicated a desire to post them by December 6 so employees could apply
for the new positions in time to complete the selection process before the end of the year
(otherwise, employees would very likely suffer a break in service as of January 1 until the
process could be completed). On December 2, Bauer met with the Union membership in Council
chambers, and when Miller said he needed additional time to review the job descriptions, Bauer
agreed to allow him to review them on City time. Several times during this phase of the process,
Union representatives asked why the City needed to reorganize, and Bauer testified that she
repeatedly explained that the reorganization was designed to redistribute work and to modify the
supervisory structure so as to preserve core City services with fewer employees.7 For example, in
an email to Goddard on December 6, Bauer wrote “the city is going from a [sic] 152 positions in
2007 to 110 next year, and it is no longer possible to simply cut from what existed and continue
to execute core functions.” Exh. E-28. She added “I think [the reorganization] saves core
services and staff to a degree greater than just continuing to cut at the old org. The structure of
work for 152 is not the same as the structure of work for 110.” Id.
Bauer had indicated in an email to Goddard that she wanted to receive comments from
the Union with respect to the proposed job descriptions by 3:00 PM on December 6, and when
she had not received comments by that deadline, she posted the descriptions and sent job
announcements to all employees. Employees, including those subject to the layoff notices, were
invited to submit letters of interest for the new positions by December 13. Exh. U-13. In the
meantime, at a meeting on December 9, the Union again asked for additional time to review the
7 Formal layoff notices dated December 1, 2010 had already been issued to 29 employees, with the layoffs slated to
be effective December 31, 2010. Exh. U-14. On the other hand, as set forth below, the City apparently intended to
reduce to approximately 110 employees, and it would have been unnecessary to lay off 29 employees to reach that
target. At the end of the process, in fact, the City had reached its goal by laying off only eight employees.
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job descriptions, while observing that the new job descriptions seemed to encompass the same
duties the employees had been performing under the old position descriptions. According to
Miller, Ms. Bauer responded to this comment with something like “the work has not changed,
but the positions have.” Tr. at 68.8 The Union suggested several times that the City “put the horse
back in the barn” so that the parties could work through their differences on the requirements of
the CBA in this context, but the City seemed unmoved by the Union’s claims that the proposal
violated the CBA.9 The parties engaged in “effects bargaining,” however, for the remainder of
the month of December. Although Bauer was visiting her elderly parents out of town from
approximately mid-December on, she arranged for others to carry on the face-to-face
negotiations, and she participated via email and phone.
While this bargaining continued, the City began to interview internal applicants for the
posted positions. Several employees testified that they believed they were interviewing for the
same position they already held, i.e. that only the name had changed.10
In addition, several
employees who were successful in obtaining a new position testified that the work they
8 Bauer testified, by contrast, that she said something slightly different, i.e. “the business of the City didn’t change,
but the distribution of the duties did.” Tr. at 418. As Ms. Bauer expanded on this concept at the hearing, “We’re
going to continue to have a water utility. Unless Council decides otherwise, we’re going to continue to have a sewer
utility. We’re going to continue to have a public works roads function, planning function, court, police, and that
what needed to happen was that we needed to take the duties in those different lines of business and organize those
duties differently to be successful going forward, that we could no longer operate as though we have 152 employees.
We had to structure the work for 110.” Tr. at 361.
9 For example, the City made clear that it would not agree to populate the new classifications “according to some
association with prior classifications.” Exh. E-29. As described previously, the Union had contended as early as
October 22 that the CBA required the City to fill positions in the new classifications in seniority order.
10
Facing layoff, and believing that they were being asked to interview for a job that differed only marginally, if at
all, from the one they already held, some employees may have gotten a bit testy during the interviews, including Ray
Navarette. In addition, most employees were asked during the interviews how they felt about the reorganization,
which Public Works Director Lance Newkirk thought would ease employee concerns in a time of stressful
organizational change. On the other hand, the question apparently made some employees uncomfortable, e.g. they
felt that if they expressed any reservation about the process, it might lessen their chances of being assigned to one of
the new positions. I mention these issues in passing, although they do not materially affect the analysis, because they
demonstrate how difficult the reorganization process was for everyone involved.
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performed in the “new” classification turned out to be identical or virtually identical to the work
they had formerly performed in the “old” classification. The City disputes that characterization,
and I will examine the details of those arguments later in the course of my analysis of the critical
issues before me. For now, it is sufficient to observe that eight unit employees were unsuccessful
in finding placement and were laid off effective December 31, 201011
(although each was
notified of layoff on approximately December 20 and then placed on paid leave for the
remainder of the year).12
On January 12, 2011 the Union filed a formal grievance alleging violations of the
seniority article. The Union also asserted that the City had improperly implemented changes in
classifications and wage rates without bargaining to an agreement, such as by laying off
employees in abrogated classifications and then rehiring them in new classifications. These
unilateral changes, said the Union, had the effect of eliminating employees’ accumulated
seniority rights in case of future layoffs (because everyone entered the newly created
11
The employees are listed in “Addenda A” to the grievance. Exh. J-2 at 5. “Addenda A” actually lists nine
employees, but one (Ryan Erickson) was not laid off because the City obtained additional funding for his position.
Another, Katie Jones, was offered the opportunity to bump into a position she had previously held (Parking
Enforcement Officer) but eventually she declined. Bauer testified that the City held her position open for several
months following the reorganization, and when the Union eventually offered not to grieve her layoff if the City
would agree not to contest her application for unemployment benefits, the City agreed. Tr. at 372-73. Orlando San
Juan’s Senior Accountant position was eliminated in Finance, a department in which no “new” classifications were
created. Tr. at 629. Jennifer Smith’s and Amy Maxwell’s Court Clerk positions were abrogated, and again, no new
classifications were created in that department. Smith and Maxwell were the two least senior employees in that
classification. Thus, the central positions at issue in the grievance are those formerly occupied by David Nelson,
Christopher St. Romain, Ray Navarette, and Tom Oreiro. Nelson and Navarette were formerly classified as
Engineering Technician II’s in Public Works-Engineering, St. Romain was a Crew Chief and Oreiro was a Public
Works Journey Worker, both in Public Works-Operations and Maintenance.
12
As a result of a rumor that one employee scheduled to be laid off had made a comment about a shotgun, the Chief
of Police suggested that laid off employees should be given only a short period of time to gather their things, should
be promptly escorted off City premises and should be instructed not to return without prior arrangements. I make no
finding about whether a credible threat existed, but I note that several of the laid off employees, each of whom had
many years of loyal City service, understandably felt demeaned by the manner in which the City ended their
employment.
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classification with the same seniority date, and seniority within classification governs layoff).13
The Union also contended that the reorganization plan itself improperly denied employees their
seniority right to avoid the layoffs taking place in December 2010 because employees were not
allowed to bump less senior employees in classifications they formerly had held. That is so, the
Union argued, because the City took the position that those former classifications no longer
existed as a result of the reorganization. Similarly, the Union asserted in the grievance that the
City had violated the Agreement by not giving due consideration to seniority when filling the
new positions, i.e. by not “recalling” or “hiring” laid off employees into those new positions by
strict seniority,14
as well as in its failure to utilize strict seniority in laying off or “reclassifying”
employees.15
All of these actions, the grievance asserts, had the effect of eliminating bargaining
unit members’ seniority for reasons other than those set forth in the CBA.
Bauer denied the grievance at the Second Step by letter dated February 1, 2011. These
proceedings followed.
13
In response to this specific concern, Bauer agreed to treat “prior City service” as the governing seniority measure
within the new classifications. Exh. E-29.
14
At the hearing, members of the City’s interview panels testified that they had been instructed to give seniority the
consideration required in Article 11.3 when filling “vacancies and promotions,” i.e. seniority was to be considered
along with the job requirements, but would only be determinative of employee selection if candidates had equal
bona fide occupational qualifications. There was only one case, however, in which candidates were equal in
qualification, and in that case, there were two positions available and thus both employees were successful in
maintaining their employment with the City.
15
Ms. Bauer had made clear that the City had no intention of filling the new positions by seniority. Exh. E-29. As a
result, Nelson, Oreiro, and Katie Jones were unsuccessful in obtaining one of the “new” positions, while less senior
employees within their classifications did find a home in the reorganized workforce. See, e.g. Exh. U-20. Similarly,
Navarette and St. Romain, although the least senior within their classifications at the time of the reorganization,
were prevented from exercising their substantial overall seniority to bump a less senior employee in a position they
formerly held. Again, the City contends those former positions no longer existed after the reorganization.
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IV. ANALYSIS AND DECISION
A. Contract Provisions Most At Issue
The City argues that it had the management right to reorganize its workforce to meet the
public’s needs in times of a dire fiscal emergency and that the “reorganized positions”
constituted “vacancies” to be filled in accordance with Article 11.3, i.e. that the City had the
right to award the job to the candidate with the highest “qualifications” and not by strict
seniority. The Union counters that the entire reorganization was admittedly a process of
“workforce reduction”—the City’s stated goal, after all, was to achieve labor cost savings—and
thus the process constituted either a “layoff” and/or a “reclassification” as defined in Article
11.4. Therefore, says the Union, the “work force reduction” should have been determined
“strictly by the order of seniority” within classification.16
The City then compounded that
contract violation by structuring the process in a manner that did not allow senior employees to
exercise their overall seniority to return to formerly held classifications.
The full text of the contract provisions most relied upon by the parties is set forth below:
11.3 VACANCIES AND PROMOTIONS – The Employer’s intent is to
encourage employees to apply for promotional opportunities. As job
openings occur, notices shall be placed on bulletin boards throughout the
City and through the use of internal e-mail for not fewer than five (5)
working days prior to outside posting. The final decision shall be posted
immediately following selection. Seniority shall be given consideration
along with the requirements of the Employer in filling job vacancies and
promotions. Seniority within classification shall apply when bona fide
occupational qualifications are equal.
11.4 LAYOFFS AND RECLASSIFICATION – Layoffs or reclassifications
due to work force reductions shall be determined strictly by the order of
seniority with the employee with the least seniority within classification
affected first. Employees who have previously held other classifications
16
The Union also contends that the City’s actions, considered apart from the express contractual provisions, violated
the implied covenant of good faith and fair dealing, i.e. that even if a strict reading of the contract language would
otherwise permit the City’s actions, the Union and the unit employees had implied rights under the seniority article
which were central to the entire bargain, and thus it would be inequitable to allow the City to deny its bargaining
partner the “benefits of the bargain.”
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shall have the right to return to such classifications if the Employee is still
qualified for the position and their overall seniority is greater than other
employees who are currently in said classification. Employees shall not
accrue seniority while on layoff.
Articles 11.3 and 11.4 (emphasis supplied).
B. Procedural Arbitrability
Before reaching these core questions, however, I must consider a procedural argument
offered by the City. Specifically, the City contends that the reorganization plan was approved by
the City Council on November 17, 2010, whereas the grievance before me was not filed until
January 12, 2011. On these facts, the City argues that the grievance was untimely—at least as to
any matters occurring before December 1, 2010—based on the following contract language:
4.9 Step 2 – In the event the grievance is not settled in Step 1, or in the event
the Union is the aggrieved party, the grievant or the Union representative
of the grievant shall, within forty-two (42) calendar days of the occurrence
of the alleged grievance, prepare a written grievance document which
shall include the following [information set forth in Article 4.9.1].
Id. (emphasis supplied). In light of the plain language of Article 4.9, argues the City, the
grievance is barred “to the extent it contests the creation and abrogation of classifications, layoffs
occurring as a result of reductions in force in the Finance and Municipal Court departments, and
all other City actions taken on November 17, 2010.” Employer Brief at 21, fn. 11.
As with all issues that involve the interpretation of the terms of the parties’ Agreement, as
Arbitrator I am bound to give effect to the mutual intent reflected in the prescribed steps of a
grievance and arbitration clause, including time deadlines. On the other hand, as I observed in a
prior case presenting a similar issue:17
17
King County Housing Authority and Pacific Northwest Regional Council of Carpenters, AAA Case. No. 75 300
00400 09 (Cavanaugh, March 23, 2010) (unpublished). The issue presented was whether a grievance became non-
arbitrable because the Union had arguably moved the matter prematurely to Step 3 of the prescribed process.
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. . . a sound labor relations climate depends upon the availability of effective
channels for processing disputes that otherwise could fester and substantially
interfere with an organization’s ability to accomplish its mission, and that
consideration is all the more important when the mission involves an important
public purpose . . . . Thus, while the parties are free to provide . . . that a
missed deadline during the arbitral process will result in forfeiture of the
grievance, if there are doubts about whether the facts of a particular case
constitute “a failure to comply with a time limitation of the procedure,” those
doubts, as a matter of public policy, should be resolved in favor of arbitrability.
Id. at 11. That is so, I noted, because
. . . the purpose of arbitration is to provide a safety valve for resolving disputes
so that they do not unnecessarily poison the relationship between the parties.
Explicit procedural requirements must be enforced by the Arbitrator, but if it is
unclear whether the parties fully intended that a particular technical procedural
lapse should result in a forfeiture of a grievance, the public policy in favor of
arbitrating workplace disputes will usually outweigh the importance of
compliance with each and every detail of the specified process, particularly in the
absence of a clear demonstration of prejudice to the opposing party.
Id. at 16. Similar considerations are applicable to this case as well, which arises in a difficult
economic climate that has placed strains on the relationship between the City, its employees, and
the Union. Leaving the underlying dispute unresolved, such as by substantially disposing of the
grievance on a procedural issue rather than on the merits, could cause the dispute and the hard
feelings it has engendered to “fester,” impairing the maximum efficiency of City operations at a
time when that efficiency is imperative to the success of the City’s efforts to continue to provide
essential public services. Thus, any doubts about whether the parties intended to erect a strict
procedural bar to consideration of this grievance should be resolved in favor of arbitrability.
Turning to the specific facts here, the City’s theory is that the Union should have
immediately filed a grievance upon the Council’s adoption of the budget and reorganization plan
on November 17, 2010. On the other hand, given that the implementing job descriptions were not
yet drafted, that the reorganization was not scheduled for final implementation until January 1,
2011, and the fact that the parties were continuing to discuss the issues raised by the City’s plan,
City of Bainbridge Island/IAM (Reorganization) P a g e | 14
the Union might then have faced a contention by the City that it had filed the grievance too soon.
It makes little practical sense, of course, to enforce the Agreement’s procedural time limits in a
manner that might require a party to file one or more “protective” grievances before the precise
contours of a dispute are fully apparent, especially when the parties are already engaged in
ongoing discussions that, if successful, might entirely alleviate the contractual concerns. The
Union, in any event, did file its formal grievance well within 42 days of the final implementation
of the reorganization plan on January 1, 2011, and it even filed within 42 days of the City’s
issuance of “draft” job descriptions for the new positions on December 6—without which the
plan could not have been implemented. In sum, in the real world, it seems to me the City’s
argument improperly designates one early aspect of a unified process as the point at which the
clock began to run, rather than completion of the process as a whole.
Even if that were not the case, however, there are two other considerations that would
require me to reject the City’s procedural argument. First, there is no contention here that the
City has been prejudiced in some way by the failure of the Union to file a formal grievance until
after the reorganization had been fully implemented, i.e. when it became clear not simply how
the work had been rearranged but also who would be out of a job. Nor could there be. Within 42
days of the Council’s November 17 resolution, the Union had formally notified the City that its
plans appeared to violate the parties’ Agreement in several specific respects, i.e. the October 22,
2010 letter to Ms. Bauer drafted by Paul Miller for Mike Goddard’s signature. Thus, this is not a
case in which the arguably missed filing deadline resulted in lack of timely notice to the City of
the Union’s issues with the reorganization plan. Consequently, it appears to me that even if I
were to find that the “occurrence” being grieved here was the Council’s budget resolution
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adopted on November 17, 2010, the Union “substantially complied” with the requirements of
Article 4.9 by giving timely written notice of its contractual concerns.
Second, unlike some CBA’s I have encountered over the years, including the one in the
King County Housing Authority decision I quoted from above, the parties’ Agreement does not
provide that a tardy grievance will automatically be considered “forfeited” or “abandoned,” nor
does it expressly provide that an Arbitrator lacks authority to hear a grievance filed outside the
prescribed period. While Article 4.2 does mandate that “grievances shall be processed in strict
accordance with the following procedures and stated time limits,” and the Article utilizes
mandatory language with respect to the timely filing of a written grievance,18
there is no express
provision that a failure to comply with those procedural aspects of the process are fatal to the
grievance. That is, it is by no means clear to me that the parties have mutually agreed that an
untimely grievance must always be dismissed on procedural grounds, as opposed to some less
draconian arbitral remedy, applied on a case-by-case basis, that would vindicate the parties’
provisions for timely processing of contractual disputes. For example, in an appropriate case, an
Arbitrator might employ cost-shifting or some similar procedural approach short of dismissal as
a means of providing sufficient incentives for the parties to comply with their agreed timelines.
In sum, I find that the grievance should not be dismissed or limited on procedural
grounds.
18
“In the event a grievance is not settled in Step 1, or in the event the Union is the aggrieved party, the grievant or
the Union representative of the grievant shall, within forty-two (42) calendar days of the occurrence of the alleged
grievance, prepare a written grievance document which shall include [specified information in support of the
grievance].” Article 4.9 (emphasis supplied). Thus, what is required under Article 4.9 is written notice within forty-
two days of the basic facts and contractual arguments underlying the grievance. While the October 22, 2010
Goddard letter was not formally labeled a “grievance document,” it served many of the same purposes considering
the evolving nature of the dispute.
City of Bainbridge Island/IAM (Reorganization) P a g e | 16
C. The Merits
1. Whether Article 11.3 or Article 11.4 Applies
I turn, then, to the merits of the dispute. As noted earlier, the crux of this case is whether
the City’s reorganization in the Public Works Department was an exercise of its management
right to organize the work and to create new job classifications (Articles 2.1 and 12.6) such that
Article 11.3 (“Vacancies and Promotions”) properly applies, or whether the reorganization was
an instance of “layoffs or reclassifications due to work force reductions,” in which case the
provisions of Article 11.4 are the appropriate yardstick against which to measure the propriety of
the City’s reorganization. The evidence convinces me that under these specific circumstances,
the City should have applied Article 11.4.
At the outset, I find it important to note that I do not question the good faith of the City’s
managers (including City Manager Bauer) who were attempting to deal with a severe economic
crisis while preserving, to the maximum extent possible, the City’s ability to provide essential
services to the public. While the Union has argued, both at the hearing and in its brief, that the
City deliberately set out to eliminate senior employees from the workforce in violation of the
Agreement, I do not find convincing proof of that assertion in the evidence.19
Nor do I question
the judgment of the City’s managers that streamlining the management structure and transferring
some functions from one section to another within Public Works, as well as configuring
positions somewhat differently, would best preserve the City’s ability to provide essential
19
I understand the Union’s suspicions, based largely on a City spreadsheet prepared early in the process that might
be read as “predicting” which employees would no longer be employed after the implementation of the
reorganization plan. Exhs. U-48 and U-49. However, the spreadsheet was adequately explained, in my view, as a
“modeling” exercise created during the budgeting process, i.e. it was a “what if?” scenario. It is significant to me,
for example, that several employees not “predicted” to be “gone” from the City in the spreadsheet nevertheless lost
their jobs during the reorganization, while several who were predicted to be “gone” were not in fact laid off. In sum,
the number of “inaccurate” spreadsheet predictions, to use the Union’s terminology, is roughly equivalent to the
“accurate” ones. Thus, the spreadsheet is insufficient to establish intentional manipulation of the reorganization
process with a design to rid the City of senior employees.
City of Bainbridge Island/IAM (Reorganization) P a g e | 17
municipal services with fewer employees. So long as the City acts in compliance with the
provisions of its Agreement with the Union, those are management choices beyond an
Arbitrator’s authority.
But the legitimacy of the City’s goals, and the soundness of its management approach in
a general sense (e.g. what would have been a reasonable management response to a fiscal crisis
in a nonunion setting or under a CBA with less stringent seniority provisions), does not answer
the question before me, i.e. whether the City has complied with its contractual obligations under
this CBA. It is true, of course, that the City has reserved its right to create “new” classifications.
That right is clearly set forth in Article 12.6, and the text of the Article implies, with little
ambiguity, that while the Union has a role in that process, that role is limited to negotiations
concerning an appropriate wage rate for the new classification—i.e. while the Union can grieve
the wage rate if the parties fail to agree, there is no express provision for grieving the
establishment of the new classification itself. On the other hand, the contract does not contain a
precise definition of what constitutes a “new” classification. The application of Article 12.6 in
many circumstances would not likely be controversial—for example, if the City created a job
classification encompassing duties completely unlike any a City employee had previously
performed. Such a classification would no doubt be considered “new” within the meaning of
Article 12.6, and properly so. At the other end of the scale, it would be just as clear, in my view,
that merely changing the title of a City job classification—without more—would not create a
“new bargaining unit classification” within the meaning of Article 12.6.20
20
The City appears to agree. See, Employer Brief at 24 (employees who experienced only a change in job title did
not receive at-risk or layoff notices, i.e. the City did not treat the classifications as “new”).
City of Bainbridge Island/IAM (Reorganization) P a g e | 18
The evidence before me, of course, falls somewhere between these two poles, and thus I
am required to determine the proper application of Article 12.6 to specific circumstances that are
more ambiguous than the above examples. On that issue, the Union argues that “while the
reduction of eight FTE’s necessarily created additional duties for some employees, their work
assignments did not change.” Union Brief at 40. For example, the former “assignments” within
the Crew Chief position were simply broken out into separate classifications, e.g. Treatment
Plant Operator 3 (Steve Pyke) and Waste & Waste Water Maintenance Tech 3 (Randall
Williamson). But the jobs themselves, says the Union, remained virtually the same as the Crew
Chief jobs before the reorganization.21
In addition, the workgroups within Operations &
Maintenance did not change except that the Facilities journey level employee, Kenny Taylor,
was transferred to the Streets and Facilities group and as a consequence may have had some
“Streets” duties after the reorganization, at least on paper. But these minor changes and transfers
of duties, argues the Union, do not constitute the creation of genuinely “new” classifications.
In arguing to the contrary, the City focuses on a number of changes made in the
organizational structure. Some involved changes in the management reporting relationships, e.g.
water resources functions would be overseen by the Engineering Manager, and administrative
support personnel were combined into a single unit reporting to an Administrative Services
Manager. Tr. at 562; Exhs. E-10, E-11, and E-12. Other management positions were shuffled,
e.g. the position of Deputy Director of Public Works was abrogated and the Public Works
Manager position was created. Exhs. E-12 and E-13. As previously noted, the Crew Chief
21
As I will discuss in a moment, the City contends that the old Crew Chief job descriptions envisioned the
performance of a relatively high level of supervisory duties, whereas the new Technician 3 classifications are
oriented more toward “field work.” As I understand it, however, the City concedes that the Crew Chiefs generally
did not perform the level of supervisory work that had been anticipated when the positions were created in 2007.
Thus, while I agree with the City’s argument that the formal job description was revised in a significant respect, that
revision is not necessarily inconsistent with the testimony of the former Crew Chiefs that they did essentially the
same work before and after the reorganization.
City of Bainbridge Island/IAM (Reorganization) P a g e | 19
positions created in the 2007 reorganization had been envisioned as developing into high-level
administrative support to the Public Works Supervisor, including the application of computer
skills, scheduling duties, and handling of some personnel matters. Because that level of support
had never actually materialized, however, the reorganization abrogated the Crew Chief positions
and created the corresponding Maintenance Technician 3 and Mechanic 3 classifications. The
revised classifications were more oriented to the “boots on the ground” aspect of the work and
were “not the same” as the Crew Chief classification. Tr. at 568; Employer Brief at 23. As Public
Works Director Lance Newkirk explained in his testimony, “duties were reassigned. We had to
break crews up. We had to fit them in different manners than they had been organized before.”
Tr. at 569. The City’s Brief also points to the fact that HR Manager Jennifer Longfield “analyzed
whether the [pay] range of Maintenance Technician III and Mechanic III classifications were the
same as the former Crew Chief positions and determined that they were not.” Brief at 24; Exh.
E-45 (Technician 3 classifications do not reflect the “advanced administrative duties” contained
in the former Crew Chief position; new positions are “intended to perform more field work
alongside crews” and thus are properly classified at a lower wage scale).
After carefully considering these arguments, I agree that the changes in the job
classifications cited by the City support a conclusion that several of the new classifications are
somewhat “different” from those under the prior organizational structure. “Different,” however,
is not necessarily the same thing as “new.” For example, for many of the positions, the factor
most heavily relied upon by the City in support of its “newness” argument is that the position
reports in a different management line. But the evidence before me does not support a conclusion
that reporting to a different manager had any appreciable impact on the content of the actual job
City of Bainbridge Island/IAM (Reorganization) P a g e | 20
performed by the employee.22
In other instances, the City has pointed to new licensure
requirements, e.g. for Treatment Plant Operator 3, or to some additional duties (at least in theory)
such as Facilities Tech Kenny Taylor having added Streets duties.23
In each case, however, while
the changes might amount to something like a “reclassification”24
of an existing position (which
also must be accomplished by strict seniority under Article 11.4 to the extent it implicates a
workforce reduction), the changes at issue here are simply insufficient to establish a “new”
position that could be filled as a “vacancy” with minimal regard for the seniority rights of
employees already occupying what is essentially the same job.
As an aside, it seems to me that the City’s arguments implicitly assume that a
classification that is “new” for purposes of establishing an appropriate wage under Article 12.6—
such as the elimination of the Crew Chief positions in favor of the Technician 3 classifications—
is likewise “new” for the purposes of placing employees into the position. In many cases, that
might well be true, but it is not inherently true in every case. Here, for example, even if the
22
If a change in the reporting manager were sufficient, in itself, to create a new classification, then no existing job
description at any point in time would reflect a substantial degree of permanence. And if that were the case, job
security seniority rights could prove to be largely illusory because laid off employees might well be prevented from
bumping back to previously held positions because those former classifications could be said no longer to exist—
even if “different” classifications exist under which precisely the same work is performed. That is essentially the
argument the City has made here. But there is no reason for me to believe on this record that the parties mutually
agreed that seniority rights could be extinguished so easily. Therefore, the fact that the parties included a seniority
“right of return” in their Agreement strongly suggests that a simple change in the reporting structure, or some other
minor alteration in the job, is insufficient to make a job classification “new” enough to eliminate bumping rights
under Article 11.4.
23
The City’s best argument along these lines, it seems to me, is that the removal of advanced administrative duties
from the Crew Chief classification resulted in a new position. But given that it is undisputed that the Crew Chiefs
did not actually perform those duties to any great extent prior to the reorganization, the recognition of that fact in the
revised Maintenance Technician 3 positions is much closer to something like a “reclassification” than the creation of
an entirely new classification. That is so because the jobs the former Crew Chiefs performed after the reorganization
are essentially the jobs they previously performed, even if it was appropriate to reclassify those jobs to account for
the fact that anticipated duties, contained in the formal job description created in 2007, were not being treated as part
of the job in practice.
24
The Agreement does not define “reclassification,” but the concept is broad enough, it seems to me, to encompass
changes to an existing job classification that leave the vast majority of the essential functions in place, whether or
not there is a change in the associated wage rate.
City of Bainbridge Island/IAM (Reorganization) P a g e | 21
Maintenance Tech 3 positions were “new” for purposes of adjusting the former Crew Chief wage
rate under Article 12.6, that does not necessarily establish that they were “new enough” to
extinguish employees’ seniority rights under Article 11.4, i.e. to eliminate the Crew Chiefs’
rights to be laid off or reclassified in strict seniority order.
In sum, when read in light of Article 11.4, I find that the City improperly treated the
revised classifications as “vacant” positions it could fill under Article 11.3. First, there can be no
question about whether one of the central purposes of the reorganization was the savings in labor
costs to be achieved through a reduction in the workforce. Ms. Bauer repeatedly made clear that
was the City’s goal, and she did so from the very beginning. Given that fact, it would be very
difficult for me to conclude that the City need not have complied with the following language of
Article 11.4:
Layoffs or Reclassifications due to workforce reductions shall be determined
strictly by the order of seniority with the employee with the least seniority within
classification affected first.
As the City reads this language, it does not preclude a “tentative” or “technical” mass “layoff” by
seniority within classification;25
followed by a “reorganization” creating “new” classifications;
followed by a filling of those “new” positions giving little or no effect to relative seniority, either
within classification or according to overall City seniority; followed by a final layoff of those
who were not successful in competing on the merits for one of the “new” positions. That
approach, however, had the effect of circumventing the seniority protections embodied in Article
25
It is clear to me that the layoff notices to 29 employees on December 1, 2010 did not constitute an actual layoff.
As previously noted, notices went to a much higher number of employees than the City intended to let go, and
several of those employees were highly unlikely to have been ultimately laid off. For example, Treatment Plant
Operator Steve Pyke, who received a layoff notice, could not reasonably have been expected to lose his job with the
City as a result of the reorganization. He was the longtime operator of the treatment plant, and the City had no one
else on staff with the same skill level to replace him. In short, the real “layoffs” here, at least within the Public
Works Department, did not occur until after the City had interviewed for and filled the positions it incorrectly
treated as “new vacancies.”
City of Bainbridge Island/IAM (Reorganization) P a g e | 22
11.4, i.e. that workforce reductions must be accomplished by strict seniority26
within
classification.
I will concede that the City’s reading of the contract language is not out of the question,27
but because the entire reorganization process was designed to produce a layoff of a sufficient
number of employees to achieve the desired labor savings, i.e. the entire process was designed to
be a “work force reduction,” I must find that the City violated Article 11.4 of the Agreement to
the detriment of several employees’ accumulated seniority.28
2. Bumping Rights
A similar analysis leads to the conclusion that employees otherwise properly laid off or
reclassified due to workforce reduction (i.e. by seniority within classification) should have been
allowed under Article 11.4 to bump back to a formerly held position if they had more overall
seniority than an employee then occupying that position. That is, if the City had actually laid off
eight employees by seniority within classification prior to reorganizing the workforce structure,
it seems likely that one or more employees—such as Crew Chief St. Romain, who was lowest in
26
In agreeing to a strict seniority provision in Article 11.4—as opposed to some form of “modified seniority”
provision in which the relative abilities of employees also play an explicit role (such as in Article 11.3)—the City no
doubt was aware that “the principal thesis underlying [strict seniority] is that, as between a junior person of superior
qualities and a senior person of inferior qualities, the social claim of the latter should override both the needs of the
business and the interest of the public in its efficient operation.” Ruben, ed., Elkouri & Elkouri’s How Arbitration
Works at 872 (Sixth Ed., BNA, 2003); see also, The Common Law of the Workplace § 5.9 at 14 (“Since strict
seniority provisions elevate the concerns of longevity over those of efficiency, they are not typical”). While the
application of the principal that seniority should take precedence over efficiency may be particularly painful in the
present economic climate, it was entirely foreseeable that a strict seniority approach to workforce reductions would
impact the City at precisely such a time, and thus the present dire financial circumstances do not constitute sufficient
justification for relieving the City of its contractual obligations.
27
For clarity, I reiterate here my earlier observation that the evidence is insufficient for me to find that the City
knowingly and intentionally circumvented the seniority provisions of the CBA. I do find, however, that the City read
the CBA incorrectly.
28
It appears that Dave Nelson (Engineering Technician), Tom Oreiro (Public Works Journeyman) and Katie Jones
(Building/Planning Technician) were not the least senior in their respective classifications and thus would not have
been laid off, even provisionally, had the City properly applied Article 11.4. Exh. U-20.
City of Bainbridge Island/IAM (Reorganization) P a g e | 23
Crew Chief classification seniority, or Ray Navarette, who was lowest in seniority within the
Engineering Technician classification—could have successfully bumped back into the Public
Works Journeyman position they had previously held. See, Exh. U-21.29
By artificially breaking
the workforce reduction process into component parts rather than viewing it as the integrated
whole it was, the City deprived these employees of their right to exercise seniority to maintain
employment with the City.
For the same reasons set forth in the prior section, I cannot accept the City’s contention
that the prior PW Journeyman classification no longer existed for St. Romain and Nelson to
bump into. Even if the City properly reorganized before the final layoffs, the “new”
classifications were essentially the same classifications as before, simply with a different name
and only minor changes in content. Those combined changes constituted at most a
“reclassification” of existing jobs as part of a workforce reduction, but even in such a
reclassification, qualified employees are entitled under Article 11.4 to exercise a “right to return”
to a former classification consistent with their overall seniority. Consequently, I must find that
the City violated Article 11.4 in that aspect of the reorganization as well.
3. Remedy
I turn, then, to the issue of a proper remedy. The Union urges me to restore the status quo
ante, i.e. require that the City return to the organizational structure that existed prior to the
reorganization,30
including restoring the eight laid off employees to employment with the City
29
For reasons that follow in the text, even viewing the issue post-reorganization, the Maintenance Tech 2 positions
were similar enough to the prior PW Journeyman positions Navarette and St. Romain had previously held that they
should have been allowed to bump back by overall seniority.
30
During the process, the Union had described this approach as “putting the horse back in the barn.” Now, of
course, that approach would be significantly more difficult than it would have been in late 2010 because
organizational changes have been implemented and a year has passed. Nevertheless, employees are entitled to have
City of Bainbridge Island/IAM (Reorganization) P a g e | 24
and making those employees whole for lost wages and benefits. Union Brief at 54-55. The City’s
brief did not comment on what remedy might be appropriate in the event I found a contractual
violation.
The Union’s central argument in favor of requiring the City to return to the status quo
ante is that the City had no right to unilaterally alter or abrogate job classifications. That is so,
says the Union, because the CBA expressly requires that employees be classified according to
Exhibit B to the Agreement. Article 13.1.2. That Exhibit lists employees by name and wage rate,
as well as by classification and job assignment, and the Union argues that this structure of the
Agreement demonstrates that the parties intended to make those classifications a term of the
contract which can only be altered by a mutual agreement.31
The Union also points to several
prior occasions, documented in the record, on which the parties have negotiated changes to job
classifications, e.g. the 2007 reorganization in Public Works. Thus, argues the Union, the parties
have created a binding past practice that such changes must be negotiated.
The City counters that the Agreement recognizes the City’s right to create new
classifications and to alter existing ones, both in Article 12.6 (“New Classifications”) and in the
Management Rights Article 2.1 (“Direction of Workforce”). The City also points to the general
arbitral rule that job classifications mentioned in an Agreement are not frozen for the life of the
CBA simply because they are listed in the contract. See, e.g. St. Antoine, ed., The Common Law
of the Workplace § 4.5 (2d Ed., BNA, 2005). As to the alleged past practice, the City contends
that the evidence is most consistent with a conclusion that the parties have historically updated
their rights restored, i.e. to receive the contractual benefits they should have been accorded, even if it is inconvenient
for the City to do so now.
31
The requirement that contractual changes must be agreed upon and reduced to writing, says the Union, is
expressly set forth in several contractual provisions, e.g. Articles 9.1, 28.1, and 29.1.
City of Bainbridge Island/IAM (Reorganization) P a g e | 25
the list of classifications in the Agreement during contract negotiations, i.e. when the contract is
open, and also notes that several existing classifications have never been negotiated or included
in the CBA at all. Employer Brief at 35. Thus, argues the City, the evidence is insufficient to
carry the Union’s burden of proof as to a binding past practice.
After carefully considering the parties’ contentions, I agree with the “majority” position
among arbitrators, i.e. that “a contract’s lists of classifications and wages [reflect] classifications
in effect when the contract was signed, not a limitation on management’s right, if exercised in
good faith, to direct the work force.” Id., Comment to § 4.5. That right includes, in the majority
view, the right to eliminate or combine classifications for legitimate business reasons—at least in
the absence of proof of an antiunion purpose, or the creation of a safety hazard, or some similar
indicator of unfairness or impropriety. Id., § 4.8 at 127-28. Applying those rules here, I find that
the City acted in good faith in changing the job classifications and management structure and had
a legitimate reason for doing so, i.e. responding to a severe economic crisis. The City’s error, in
my view, was not in reorganizing the workforce per se, but rather doing so in a way that had the
effect of circumventing the seniority rights of some employees as set forth above. Therefore, in
determining an appropriate remedy here, the guiding principles must be to preserve the City’s
right to organize its workforce so as to maximize productivity and efficiency within the
parameters of the CBA, while at the same time providing a remedy sufficient to vindicate the
seniority rights of the wronged employees identified in the Union’s grievance. In the end, I do
not find it necessary to order that the City undo the reorganization in its entirety in order to
provide an appropriate remedy for those employees.
First, I note that the evidence does not establish that each one of the eight employees
listed in Addenda A to the grievance was improperly laid off. In fact, the evidence establishes
City of Bainbridge Island/IAM (Reorganization) P a g e | 26
that Court Clerks Maxwell and Smith, as well as Senior Accountant San Juan, were all laid off
according to seniority within the classifications they occupied, just as Article 11.4 requires, and
unlike Public Works, no new or revised positions were created within Finance or the Municipal
Court to perform the functions of their eliminated positions. Nor has there been any showing of a
prior classification in some other department that any one of these employees could have
bumped into. Therefore, I must deny the Union’s grievance to the extent it encompasses their
layoffs.
Of the five remaining employees at issue (Katie Jones, Chris St. Romain, Ray Navarette,
Dave Nelson, and Tom Oreiro), Jones, St. Romain, and Oreiro were each laid off out of seniority
order within their classifications. That is, the evidence establishes that Ms. Jones was 2 of 3 in
the Building/Planning Technician classification, but she was laid off while the employee with the
least seniority in that classification was retained.32
Similarly, Nelson was the most senior (1 of 8)
in the Engineering Tech classification,33
and Oreiro was 2 of 11 among the Public Works
Journeymen. Exh. U-20. Clearly, then, none of the three employees were laid off or reclassified
by strict seniority within classification. That result violated the Agreement and presumptively
entitles each employee to relief, including reinstatement without loss of seniority and with back
32
As I understand it, Ms. Jones was a technician in the Planning Department, but the City determined that a planner
could take on her counter duties. In addition, the two Permit Technician positions existing after the reorganization
were in the Building Department, but Ms. Jones did not have experience in the building permit process. On the other
hand, the record does not establish the extent to which, if at all, it would have created a substantial burden on the
City to provide training to Ms. Jones to enable her to perform the Building Department position. That issue is moot,
however, because the evidence established that the City and the Union reached a settlement of Ms. Jones’ layoff
grievance. See, Footnote 34, post.
33
The City seems to argue that Mr. Nelson was not qualified for the post-reorganization engineering position
because he lacked a Professional Engineer License (“PE”). The evidence established, however, that the actual
requirement of the position was the ability to obtain a PE license within a year. The City doubted Mr. Nelson could
do so, while he testified that he would have expected to be able to meet that qualification. Given the strong seniority
language in the Agreement, which does not include a consideration of relative qualifications in the workforce
reduction context, I must resolve any doubts on this issue in Mr. Nelson’s favor. Whether Mr. Nelson could continue
in such a position if he failed to acquire a PE license within a year is a question I need not and do not decide.
City of Bainbridge Island/IAM (Reorganization) P a g e | 27
pay and benefits.34
Similarly, Navarette and St. Romain, while least senior in their classifications
and thus properly designated for layoff initially, were not afforded an opportunity to exercise
overall seniority to return to their former PW Journeyman classification (either pre-
reorganization or in its reclassified Maintenance Tech 2 form). Therefore, they are also entitled
to relief, including a right to reinstatement with back pay and benefits should a reconstruction of
the layoff process establish that they would have been qualified to assume a PW Journeyman
position, or some other position they previously held, then occupied by an employee with less
overall seniority.
The remedy will be limited to these four employees (Nelson, Oreiro, St. Romain,35
and
Navarette) while, for reasons set forth in the prior footnote, Ms. Jones will not be awarded any
relief. It is no doubt the case, however, that other employees will very likely be affected by a
reconstruction of what would have happened had the City complied with Article 11.4. That is, if
the layoff/reclassification is modified so as to recognize the seniority rights of the four
employees as set forth above, there will no doubt be a domino effect on one or more of the less
senior employees who successfully retained a City position during the reorganization. These are
matters that should be addressed by the parties in the first instance, however, and thus I will
remand the matter for an attempt to reach agreement on the proper implementation of the general
34
With respect to Ms. Jones, however, City Manager Bauer testified that she reached an agreement with the Union
that if the City did not contest Ms. Jones unemployment benefits, the Union would not contest her layoff. Tr. at 372-
73. The Union’s witnesses did not contradict this testimony, and thus I find that Ms. Jones is not entitled to a remedy
here even though she was laid off out of seniority order. In any event, any remedy to which she might otherwise
have been entitled would necessarily have been reduced or eliminated by her failure to accept the Parking
Enforcement Officer position to which she could have returned on the basis of her overall City seniority.
35
Mr. Romain did not testify at the hearing, and there is no evidence before me as to whether he wishes to return to
the City. He is entitled, however, to an opportunity to exercise his overall City seniority to return to a former
classification. Whether he is entitled to relief, and the scope of that relief, if any, will depend on what he decides to
do.
City of Bainbridge Island/IAM (Reorganization) P a g e | 28
remedial principles set forth in this Award. I will reserve jurisdiction, however, to resolve any
disputes with respect to remedy that the parties are unable to resolve on their own.
D. Conclusion
The grievance must be granted in part and denied in part. Employees Nelson and Oreiro
were improperly laid off out of seniority order, and employees St. Romain and Navarette were
improperly denied an opportunity to exercise bumping rights to return to a formerly held
classification. Therefore, the grievance must be granted as to them, and they are entitled to an
opportunity to exercise their seniority as provided in Article 11.4 as well as to be made whole.
Employees San Juan, Maxwell, and Smith were not laid off in violation of Article 11.4, and thus
the grievance must be denied as to them. Although employee Jones was laid off out of seniority,
the City and the Union reached an agreement that there would be no challenge to her layoff if the
City agreed not to contest her unemployment benefits. In light of this agreement, the grievance
must be denied as to Ms. Jones as well.
City of Bainbridge Island/IAM (Reorganization) P a g e | 29
AWARD
Having carefully considered the evidence and argument in its entirety, I hereby render the
following AWARD:
1. The City violated the Agreement by failing to comply with Article 11.4 in the
layoff out of seniority of David Nelson and Tom Oreiro, as well as in not affording Chris St.
Romain and Ray Navarette an opportunity to bump back to a previously held position on the
basis of overall City seniority;
2. The City violated the Agreement by laying off Katie Jones out of seniority order,
but the parties reached a resolution of her claim; and
3. The City did not violate the Agreement by laying off Orlando San Juan, Amy
Maxwell, or Jennifer Smith; therefore,
4. The grievance is granted as to employees Nelson, Oreiro, St. Romain, and
Navarette and denied as to employees Jones, San Juan, Maxwell, and Smith.
5. Mssrs. Nelson and Oreiro shall be promptly reinstated without loss of seniority
and shall be made whole for lost wages and benefits, less customary offsets and deductions;
Mssrs. St. Romain and Navarette shall promptly be afforded an opportunity to bump back to a
previously held position for which they were qualified as of December 1, 2010 and for which
they held greater overall City seniority than an employee then occupying that position; if
successful in bumping into such a position, Mssrs. St. Romain and Navarette shall be promptly
reinstated without loss of seniority and shall be made whole for lost wages and benefits, less
customary offsets and deductions;
6. The matter is remanded to the parties for an attempt to agree on implementation
of the remedy according to the principles set forth in this AWARD; and
7. The Arbitrator will retain jurisdiction for the sole purpose of resolving any
disputes over remedy that the parties are unable to resolve on their own; either party may invoke
this reserved jurisdiction by fax or email sent (or letter postmarked) within ninety (90) days of
the date of this Award (original to the Arbitrator, copy to the other party) or within such
reasonable extensions as the parties may mutually agree (with prompt notice to the Arbitrator) or
that the Arbitrator may order for good cause shown; and
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City of Bainbridge Island/IAM (Reorganization) P a g e | 30
8. Consistent with the terms of their Agreement, Article 4.16, the parties shall bear
the fees and expenses of the Arbitrator in equal proportion.
Dated this 13th
day of January, 2012
Michael E. Cavanaugh, J.D.
Arbitrator