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12-16-1974 - Special Meeting - Minutes1 MINUTES OF SPECIAL MEETING OF THE CITY COUNCIL CITY OF' WEST COVINA, CALIFORNIA DECEMBER 16, 1974 A. special meeting of the City Council called to order at 4135 P.M. in the West Covina Council Chambers by Mayor Chester Shearer. ROLL CALL Presents Mayor Shearert Councilmen: Browne, Chappell, Miller, Tice Others Presents George Aiassa, City Manager Lela Preston, City Clerk George Wakefield, City Attorney George Zimmerman, Public Service Director Leonard Eliot, Controller Jeff Butzlaff, Administrative Analyst Kevin Northcraft, Administrative Asst. Janet Williams, Administrative Analyst Calvin Wetherbee, Chief, Fire Department Harold Swartz, Batt. Chief, Fire Department J. Nicholas Counter III, Attorney A. Dotson Bennett, Attorney, Ca. Teamsters Public Employees Union Charles Bahn, President, Firemens Assoc. Michael Holle, Fire Department Larry Kliewer, Fire Department Gary Duvall Mayor Shearers We will dispense with the normal formalities of business meeting to get to the matter at hand. The purpose of this meeting is to have the Council conduct a Hearing for a grievance filed by the West Covina Firemens Association with reference to replacements. Is a representative of the Firemens Association here? Mr. Dotson Bennett: Yes. Mayor Shearers Could you give me, just so we can get things into proper perspective, an approximation, which you will not necessarily be held to, of the length of your presentation. Mr. Bennett: We have a total of four witnesses which will be giving direct testimony. It is my under- standing, Mr. Mayor, that, at least in chatting with counsel for the City, we will conduct this Hearing in terms of a format of that of an Arbitration Hearing, so that we will have an opportunity to have witnesses under direct examination, both sides • - wNh cross and opening and closing statements inasmuch as the Council has chosen to sit as Grievance or Arbitration Board in this matter. So, we would like to have designated a witness chair for the wit- nesses, and your pleasure or procedure in regard to whether testimony should be sworn or otherwise. - 1 - ti n U CITY COUNCIL Grievance Hearing December 16, 1974 Page Two Mayor Shearer: Well, can you give me some approximate idea as to, without any cross examination, how long it will take to present your case? Mr. Bennett: I don't think it should take us more than 45 minutes at the outside. Mayor Shearer:. Mr. Counter, about how long do you think it will take to present the Staff's case? Mr. Counter: I would say 15 to 20 minutes. Mayor Shearer: The reason I am asking you, gentlemen, is we have a timeelement factor; Mr. Wakefield has a meeting in Azusa tonight at 7:30. When we scheduled this meeting, we thought it might be shorter than perhaps it is now appearing. So, depending upon the time element, it may be necessary at approximately sometime between 6:30 and 7:00 P.M., if we are still going, to continue until some other time. We trust that that will not be the case. The procedure, subject to major disagreement, will be pretty much as Mr. Bennett has indicated. We will give him, representing the employees, an opportunity to make his case, calling witnesses. Of course, these witnesses will be subject to cross examination by Mr. Counter, and also questions on the part of the Council. Witnesses, all witnesses, will be sworn by the City Clerk. At the conclusion of each presentation, of course, the Council will still reserve the right to ask questions to assist us in our deliberation. Are there any questions on the part of Council or Counsel on procedural matter? Councilman Tice: Did we decide whether the witnesses will be sworn? Mayor Shearer: Yes, the witnesses will be sworn. Oh, you asked for a chair for the witness. Mr. Bennett: Yes. I think right there (indicated chair to the far left of the Council). Mayor Shearer: Yes. Are the microphones on? Mr. Aiassa: Yes. Mayor Shearer: Alright, the witnesses can sit in either one of the two chairs over there. Any other questions in regard to the procedure? (There were none) Mr. Bennett, would you proceed. First, for the record, give your name and address. - 2 - ti CITY COUNCIL Grievance Hearing IN THE MATTER OF GRIEVANCE FILED BY THE FIREMENS ASSOCIATION OF THE CITY OF WEST COVINA, CA. • TO DETERMINE REPLACEMENT PROCEDURE ---------------------------------- For the Firemens Association: For the City of West Covina: December 16, 1974 Page Three A. Dotson Bennett, Director California Teamsters Public Employees Union 846 S. Union Avenue Los Angeles, Ca. 90017 J. Nicholas Counter III Mitchell, Silberberg & Knupp 1800 Century Park East Los Angeles, Ca. 90067 OPENING STATEMENT BY MR. BENNETTs Gentlemen, we raise this issue to the heights of arbitration and have requested you sit as such Board because we felt that the only opportunity for all of the facts to come out would be do such a forum. It was not done lightly, I assure you. There have been many, many, many hours spent by Staff, by ourselves, and by your employees in trying to reach a solution to this matter prior to taking up your time. So, we are not here certainly on some whim, and I think you know that the grievance has been in existence now since September, and we are just at this point getting here. We think that we will be able to show to you, through testimony and documents, that prior to July of 1973 the practice which we are complaining about in the Fire Department has been in existence. That is the practice of not replacing employees on what is known as a rank for rank basis. That is, when an Engineer is absent, you call in an Engineer to fulfill those duties because the assumption is that only Engineers are qualified to do that job. We believe without any doubt that we will be able to demonstrate that to you. Prior to 1973 in July, when the issue was first raised, the practice was not to replace on a rank for rank basis. That was the reason, the motivation, why the employees came forth in contract negotiations and made a proposal to stop that practice and institute a practice of replacing rank for rank. The second item we think we will be able to demonstrate to you, that was a legitimate contract proposal. • There were negotiations that went on, with give and take, and out of that give and take there was compromise which came to be settled down in the form of the agreement that we reached, and which will be referred to in this Hearing, throughout the time, as Article 2, Section 3.2 of the Agreement. We will be intro- ducing an exhibit to that effect in a few minutes. - 3 - CITY COUNCIL December 16, 1974 Grievance Hearing Page Four Next item is that in the 1973-74 contract negotiations, the language was reached and there was no change made in the language of the 1974-75 contract negotiations. Therefore, today, both in September and December of 1974, we still have the language standing as it was agreed upon in 1973• • We will be able to show through evidence that there was an intended change made in the practice of these negotiations. And, that this intended change was stated very clearly in con- versations in the negotiations between the parties, and, also in conversations of some of the witnesses with Department personnel, ex -Department personnel as well, as well as current Department personnel; to wit, Chief Short played a very major role in conversations with four different witnesses. The next item, I think, is that a cause of probably a great deal of the delay and misunderstanding in this whole area was a sin that we committed. When I say "we", I am talking about the employees, and particularly a couple of employees. 1973, you may remember, was when your employees in the Fire Department chose to affiliate themselves with the California Teamsters Union and it was a brand new experience to them in terms of labor relations. Heretofor they had pretty much worked out things within the Departments a very informal type of relationship. In other words, grievances didn't really mean very much to them,,and what to do with them and how to file them was certainly not in their vocabulary nor realm of experi- ence. So, after the negotiations of 1973, when two key members of the negotiating committee were prevailed upon by the then Acting Chief Short to reach into an agreement that would in essence delay the effective tones of Article 2, Section 3.2 for several months... We will give you direct testimony to that effect. So, you will see why it was not until September of 1974 that we came forth on this matter, when one might suspect it happened all during 1973 and why weren't you here then. We feel that in these areas we will be able to give you testimony. And, to that endeavor, I would like to introduce some exhibits at this time. The first one is a copy of the grievance that was filed. If there are no objections, it will.be entered as Union Exhibit 1. (There were no objections.) The second exhibit we would like to have entered is a facsimile of a page of the Agreement between the City of 'Nest Covina and ourselves. I represent to you that it is a copy of page 3, paragraphs 2.3 through 2.6. We would like to have this received and marked as Union Exhibit 2, for the record. OBJECTION BY MR. COUNTER: Mr. Mayor, I would object to the intro- duction of that one page of the Memorandum. I have entire copies of the Memorandum. I think it would be preferable that the Council have before them the entire document, rather than an exerpt out of it. • SM CITY COUNCIL Grievance Hearing December 16, 1974 Page Five MR. BENNETT: I have no objection that it be a Joint Exhibit, Mr. Counter, if you have them. I am just trying to save paper. MR. COUNTER: I have copies of both the 1973-74 Memorandum and • the 1974-75 Memorandum. MR. BENNETT: That is agreeable. So, I withdraw Union Exhibit 2 based upon the objection. Do you want to make it a Joint? It would make it a lot easier at this point. MR. COUNTER: Alright. MR. BENNETT: Joint 1 and 2. MR. COUNTER: Joint Exhibit 1 will be the 1973-74 Memorandum, and Joint Exhibit 2 will be the 1974-75 Memorandum. MR. BENNETT: Mr. Counter, do you represent that this is in fact the Memorandums? MR. COUNTER: Yes, I do. MR. BENNETT: At this time, Mr. Mayor, I would like to call to the witness stand Mike Holle. Mr. Michael Holle took the witness stand and was sworn in by the City Clerk. DIRECT EXAMINATION BY MR. BENNETT: State your name and rank for the record. MR. HOLLE: Michael Holle. I am an Engineer, City of West Covina. Q. How long have you been employed in the Fire Department of West Covina, Mike? A. For a little over 8 years; since 1966. Q. I see. Have you served as an officer of the Fire Fighters Association? A. Yes. Q. Have you been a member of the negotiations for meet and confer committees? A. Yes, I have. Q. I see. Were you such a member when, or also in the 1973-74 negotiations? A. Yes, I was. • Q. Were you such a member during the 1974-75 period of negotiations? A. Yes. - 5 - T CITY COUNCIL Grievance Head December 16, 1974 Page Six Q. Therefore,I can assume that you had direct knowledge through these positions that you served in in 73,74, and 75; is that correct? A. Yes. • Q. You filed a grievance relating to this matter? A. Yes, I did on September 16th of this year. Q. I have a copy so that you can identify it here. MR. COUI4TER: I'll stipulate to the Agreement. MR. BENNETT: Ok, we have a stip. Mike, would you explain the grievance to us? MR. HOLLE: Well, I filed the grievance on September 16th because we felt that 2.3 of Section 2 was being violated by the change in our manning schedule at work. We had in our salary negotiations put in that we would have rank for rank replacement. By rank for rank, I meant: when a Captain is off, a Captain would replace him, whether it be for vacation or sick leave or he hurt himself on the job that day, they would call in someone of the same rank to put in his place rather than through past practices. What they had done was (we will use a Captain, for instance) if a Captain was off sick, they would use an Engineer, who normally drives a truck, and make him the Captain, and then take a Fireman and make him an Engineer, and then they would run short of what our normal manning would be for that day had not the person been sick or off on vacation. So, this had been going on ever since I had been on the Departments and,through talking with the men on the job, it had been going on for a number of years prior to when I cameon. So, this was something that the men in the Association wanted to get rid of. We wanted qualified people working in the jobs they are supposed to be working in. During 1973► this is what we had gotten put in. Q. You say the testimony is, though, you say you filed a grievance based upon the rank for rank replacement was not being honored. Do I understand your testimony to say that just prior to September there was rank for rank replacement? A. Yes, I think it went back to April, if I recall correctly. We had started to have rank for rank... Q. April of what year? A. Of 74. And, we had rank for rank replace- ment up until this time. And then, on the 16th of September, the men that were supposed to be working - the ones they did not call n • CITY COUNCIL Grievance Head December 16, 1974 Page Seven the night before, those that came into work, were sent home and they ran short of our regular manning and moved people up. We did not go rank for rank. Q. So at that time in September was the causing factor - the fact that they had discontinued now the practice of rank for rank replacement, is why you filed grievance. Is that correct? A. Yes. Q. Ok. Why is it important that replacements be made on a rank for rank basis? A. Well, we wanted qualified people to be in the positions that they are qualified for rather than taking an Engineer that possibly had never passed a Captain's test, might not be eligible ever to take one, might not have had the time on the job, or whatever the case might be, and say, "Ok, today, instead of being an Engineer, you are a Captain" and put that responsibility on his shoulders. Or, do the same thing with a Fireman into an Engineer's rank that possibly had never passed an Engineer's test, might not have been qualified. When you put unqualified people, we felt, in these positions, you put more of a strain, more of a danger upon our job as Firemen, more of a danger upon the people we are trying to serve in the City of West Covina. This is the basis for the rank for rank coverage that we wanted what we felt we had in our negotiations. Q. Mike, I want you to explain how it works right now, since the City has stopped replacing on a rank for rank basis. Explain how that works in contrast to the replacement for rank for rank which occurred from April through August of this year. A. Well, for one thing, we have a four man Engine Company which is stationed at Station 1, which is our head- quarters station, and, at Station 2 which is at Cortez Park. By four man, I mean we have a Captain, we have an Engineer who drives and pumps, and we have 2 Firemen. Well, if the Engineer was off sick today, they would move one of the Firemen up and we would be one man short at that station. In the past, until we had the Paramedics came back, they used to take the Rescue Truck out of service ... when so many people call in sick, they would move up to the point of taking the Rescue Truck out of service, so we had no rescue that day. They would also take the Snorkle out of service, so we had no Truck Company that day. - 7 - 66 CITY COUNCIL Grievance Hearing December 16, 1974 Page Eight • • Q. So, when they stopped the practice and were no longer replacing rank for rank, you were really not only running short of men in terms of total number of men, but you have unqualified men on the job. Is that correct? A. Yes. Q. Because they are not even on a Promotional List are they necessarily - a guy that is an Engineer and is now put up there as captain? A. Not necessarily, tome of them are on a list, and some aren't. Q. Ok. You testified earlier that you partici- pated in negotiations of 1973-74; is that correct? A. Yes. Q. Who attended those sessions for the Union Association? A. For the Union it was Larry Kliewer and myself and Dotson Bennett and Dick Smith. Q. I see. Was there anyone else that was in attendance at any time for the employee's side? A. During the last meeting Charlie Bahn was present in my place because I was unable to attend. Q. Who attended those sessions in the same year for the City Management Team? A. There was Mr. Duvall, Leonard Eliot, and Nick Counter. Q. I see. Mike, explain in your own words, based upon your memory and knowledge, what the Union Association proposal was in regards to the issue at hand, which is the rank for rank replacement that we are all here concerned about this evening. How was your proposal - what was it that got onto the table in 1973 that brought us here this evening? A. Well, we wanted, like I stated earlier, a Captain to replace a Captain, an Engineer to replace an Engineer, and a Fireman to replace a Fireman. And, during the negotiations it was brought up that there might a time arise when it would be impossible to reach a Captain, for instance. You have one shift that is on duty, and you have two that are off. And, if you have say 10 Engineers off, and it is during the summer months, and a few are on vacation, whatever the case may be - maybe one or two are sick and the others are not home when you call, what would happen if you could not reach the Captains? Well, not wanting to run without a Captain, or hole the position so it is empty, we said then fine, so long as the City makes every effort to reach - 8 - - 0 CITY COUNCIL Grievance Hearing December 16, 1974 Page Nine the people that are off, then if they could not, go ahead and move somebody else. By moving up, I mean take an Engineer who would be qualified to be in a Captain's position, and make him a Captain for the day. Q. Well then, how are you defining the words "where possible" that was involved? A. The "where possible" to us meant that the City would make every effort to reach all off duty people of that rank that they were trying to replace, and, if they could not reach anybody, then they could call in someone else. Q. Mike, I want to direct your attention to Joint Exhibit 1, on page 2, paragraph 2.3. Is that the language that, to the best of your knowledge, was agreed upon at the con- clusion of and became part of the Agreement in 1973-74? A. Yes. Q. It is. A. Originally, we did not want the words "where possible" put in because we were afraid that problems might arise such as we have here today. But, not wanting to be hard-nosed about it, we decided that we felt we had an Agreement - a written Agreement, and so forth, and that everything would work out fine. Q. Well now, what did the Management Team that negotiated with you say or do to convince you that "where possible" in the 1973-74 negotiations was an acceptable term for you? A. Well, first of all they acted very sur- prised that we even wanted a something in for replacements because it was their understanding that we were already replacing Captains with Captains, and Engineers with Engineers. Q. Who is "they"? You said it was "their understanding"; do you recall... A. Mr. Eliot and Mr. Duvall. Q. I see. Go ahead, you were saying you bought the words "where possible"; it sounded acceptable because of some assurances they were giving you, I believe? A. Well, we were assured during negotiations that they would make every effort to reach the people that were off duty that would replace the people they were trying to replace. And, they wanted, more or less, a way out if they could not reach these people rather than leave the position unfilled. We agreed that we wanted it filled, and we, for the best interests of ourselves. and the City and everybody that we serve, bought the "where possible" with an agreement that was talked over amongst ourselves that the - 9 - T CITY COUNCIL December 16, 1974 Grievance Hearin? Page Ten "where possible" would be that they would make every possible attempt to reach the people. Q. Well, Mike, I am going to direct your attention now to Joint Exhibit 2, paragraph 2.3 on page 3. To the best of your knowledge, is this the language that was agreed upon in the 1974-75 contract negotiations and then subsequently became part of that Agreement? A. Yes. Q. Is there a difference between that language and the language in Joint Exhibit 1, to your knowledge? A. No. Q. Ok. After the agreement in 1973 was reached, and signed and ratified by the parties, Mike, did you have any discussion with any members of management of the Fire Department in regards to Article 2, Section 2.3 that we have just discussed? A. Yes, I did. Q. And, who was that with - who attended the meeting? A. I was on duty at Fire Station 5 and Larry Kliewer was called in and Chief Short came down and talked to us about it. Q. I see. What happened at that meeting? A. At that meeting it was brought out that with the present finances that the Fire Department had and the proposed Paramedic Program that Chief Short was trying to instigate, they wanted to show the City that they could operate within their overtime budget and be able to go into April, when the Paramedics would be going to school, with enough overtime and monies available to go through the program, and, more or less, sell it to the City Council. Q. Did Chief Short propose some sort of an agreement or an arrangement with you? A. Yes, we talked it over and we agreed that we would not strictly enforce or try to enforce Section 2.3, or Article 2.3 of the rank for rank replacement due to the fact that the time for the Paramedics to go to school - there would be enough overtime that the guys would not have anything to worry about as far as running short because the money would be budgeted for rank for rank replacement; and then come the time when the Paramedics would be back from school (which was September this year), the way our manning schedule would be, they would not have these people to - 10 - 1 CITY COUNCIL Grievance Hearing December 16, 1974 Page Eleven move up. They would have to call rank for rank replacement. Q. I see. A. Indirectly it was coming about through the Paramedic Program. . Q. Did I understand you to say that you reached an agreement with Chief Short to look the other way in this deal that you and he made in regards to violation to the contract language? A. Yes, that we would back -off. Q. You'd back -off. So, in essence, what you were doing with him was postponing the effect of this agree- ment until April of 74; is that correct? A. Yes, in order to have the Paramedic Program. Q. Did you tell anybody about that deal that you had with Chief Short? A. Kliewer and I talked it over, since he was the Vice President and I was the President of the Association at that time. Q. I see. So this was an arrangement between Chief Short and yourself and Kliewer; that is correct? A. Right. Q. Fine. So in April then of 1974, what happened was it commenced to replace on a rank for rank basis as the language called for in the 73-74 agreement; is that correct? A. Yes. Q. Did you in any way believe that you were removing that language, effectively removing that language, from the Agreement? A. No. Q. And so, it was your intent to postpone the effect of the language? A. Yes. Q. I see. Let us direct our attention to the negotiations of 1974-75. To your knowledge, was this issue of replacement of rank for rank raised by the Union negotiators in 1974-75? A. Just that we wanted it in our contract • again for another year. It wasn't a major issue because at that time we were already replacing rank for rank. Q. Did the Management Team respond in any way to the proposal that we have? I CITY COUNCIL Grievance Hearing December 16, 1974 Page Twelve A. They - if you want to know if they wanted it deleted, no, there seemed to be no problem with it in there. Q. So, as far as they were concerned you were not asking for anything you did not already have and there was no problem because it was in practice at the time. Is that correct? A. That is correct. Q. So, from April of 1974, approximately, through March of 1974 that the Department did replace on a rank for rank basis, as you understand our Agreements to require. A. April of 1974 until September of 1974. Q. Until September of 1974? A. Yes. Q. Did you have any reason to believe, Mike, I am now talking about the negotiation period of 1974-75 when you were sitting across the table from Management's representatives, did you have any reason to believe that in September,or later of 74, the Department was going to stop replacing people on a rank for rank basis? A. No, I did not. Q. Is it true that, in fact, your side deal with Chief Short was a commitment that they would not stop? A. Well, the way our manning was, it was there. There was no problem. Right. Q. Ok. That concludes my questions. CROSS EXAMINATION BY MR. COUNTER: Mr. Holle, you say, if I understand your testimony, that the period of April of this year through approximately September 16th of this year the Fire Department was replacing on a rank for rank basis. Is that correct? MR. HOLLE: Yes. Q. Do you know for a fact how assignments are made in each and every case in the Department - the Fire Department. A. Well, what do you mean... Q. Each and every shift. A. What do you mean? How it is determined who replaces who? Q. No. Can you explain to us how you have personal knowledge of whether or not the Department was replacing on a rank for rank basis during that period of time? A. By the Log Book. Q. You check the Log Book? - 12 - 0 • CITY COUNCIL Grievance Hearin December 16, 1974 Page Thirteen A. 'I have access to it. I haven't checked every Log Book, but I know when - for instance, -when I was on vacation, who was replacing me - I couldn't tell you off -hand, but I could ;-o back and look at the overtime list and assignment sheet. Q. And, you are actually positive that in no case during the period of April 1974 through September 16th of this year did the Department assign in accordance with their so- called move up policy? A. I would probably say there was some, but due to the fact that we were going through the summer months and there was a number of people off duty, and if the Chief came to the Association and asked if it would be alright if certain people would be able to - qualified people, be able to move up. Because,for instance, if two Captains are off, and you are talking about five Captains on duty, and you have two off, and you have ten that are off duty, and you have a couple of those off on vacation, you are going to have problems replacing. For Instance, our Rescue Truck, they were putting Captains working in Firemen position because the Firemen did not have enough Firemen available to fill the Firemen rank, So,we were not always working; during the summer months in that time in an exact rank for rank replacement due to the fact that we agreed with Fire Department Management to forego that due to the fact that there weren't enough people available. Q. That is a long way of saying that the Department was in fact moving people up during this period of time; isn't that correct? A. Yes, working; out of rank - up and down, for convenience to the Department. Q. As I understand it, your basic concern and the main purpose of the so called proposal to replace on a rank for rank basis was your concern over the fact that the replacement be qualified. Is that correct? A. Thats one of the concerns, yes. Q. Well, isn't it true,Nr. Holle, that if you actually replace rank for rank, the replacement would in fact be qualified? A. Yes, definitely. Q. Otherwise he wouldn't have held that same rank; isn't that correct? A. Unless you wanted to throw an Engineer, possibly, into the Inspectors Bureau, or a Captain into the - 13 - CITY COUNCIL December 16, 1974 Grievance Hearing Page Fourteen Inspectors Bureau, he might not be qualified. That is correct Q. Where you are replacing a Captain with a Captain, then the presumption certainly must be that the Captain who is the replacement must be qualified or otherwise he wouldn't be a Captain. Is that correct? A. Right. Q. Same is true of replacing an Engineer with and Engineer, the replacement in that position would of necessity be qualified, otherwise he would not have achieved the rank of... A. No, I disagree. Q. ...Engineer. A. No. Q. An Engineer might not be qualified to be an Engineer? A. Not in all cases, no. Depends on where the Engineer is working. If you want to put an Engineer on the Truck Company, then we have many Engineers that might not be qualified to work the truck. We have many Firemen that might not be qualified to work the Rescue Truck. Q. How does one become an Engineer under the City's personnel policies? A. First of all you have a length of service that you have to put on as a Fireman; then you have schooling that you have to attend; then you have a practical exam you have to pass; you have an oral and a written exam you have to pass; then you are put on a list; and, then you get the appointment. Q. And, once you are appointed to the rank, or promoted to the rank of Engineer, are you not able to act as an Engineer for the City Fire Department? A. Once you are appointed that means you should be qualified, but that doesn't mean you are qualified. Q. Thats your opinion. A. Ok. Q. But why would you be promoted to the rank of Engineer if you are not qualified to be an Engineer. I don't follow that. A. I don't make the appointments. • Q. Mr. Holle, I would like to refer you back to the 1973 negotiations, and I take it your testimony is this language that you are concerned about in these two Memoranda of Understanding first appeared in the 1973-74 Memorandum; is that correct? A. Yes. - 14 - CITY COUNCIL Grievance Hearing December 16, 1974 Page Fifteen Q. Do you recall who made the proposal in written form to cover that particular situation? On a rank for rank replacement - who made the proposal? A. We made the proposal. As far as written form, I don't know if we did, or if you counter -proposed, or what, I'm sorry. Q. So, you don't recall ever making a proposal in writing similar to that which ended up in the Memorandum of Understanding? A. I don't know if we did, or if you people wrote it out, I'm sorry. Q. Well, do you recall what your proposal was on the subject of replacement? A. Yes, to replace rank for rank. I know we did not want the words "where possible". We have had two years of negotiations and about 20 meetings each year, so, I can't really recall word for word what went on. But, I know that we did not want the "where possible" and that was a compromise. We wanted rank for rank replacement in our 2.3. Q. How many negotiating sessions did you attend during the 1973 negotiations? A. All of them except one. Q. How many were those? A. I don't know, but I can recall I took my vacation in September and we were still negotiating. Q.. Well, can you give us an estimate of how many meetings... A. I would say 10 or 12. Q. When did the first negotiation session take place? A. April - May, I'm not sure. Q. Who participated in those negotiations from the City? A. Mr. Eliot, Mr. Duvall. Q. Do you recall at what point in the negotiations I became involved? A. You became involved in about the last third, I would say. U CITY COUNCIL Grievance Hearing December 16, 1974 Page Sixteen Q. Is it a practice of your Association in conjunction with your Union to have a Memorandum of Understanding ratified by the Membership once it is negotiated? A. Yes. Q. And, the 1973-74 Memorandum of Under- standing, I would take it by your testimony, then was ratified by the Memberships is that correct? A. Yes. Q. The same thing is true of the 1974-75 Memorandum of Understanding? A. Yes. Q. Did you make any attempt to have your side deal with Chief Short ratified by the Membership? A. No. Q. I have no further questions. QUESTIONS BY CITY COUNCIL MAYOR SHEARER: Are there any questions from -Council to the witness at this time? I have one. This meeting, Mr. Holle, that you referred to as, I believe, taking place in Fire Station 5 among yourself, Mr. Kliewer, and Chief Short, when did that take place? MR. HOLLE: That was shortly after - I would say it was probably October, the first part of October because we had gone into September in negotiations and it was right after we had the Memorandum of Understanding ratified by the Council. MAYOR SHEARER: October of 1973? MR. HOLLE: Yes. MAYOR SHEARER: Thank you. COUNCILMAN TICE: I've got one question. In your testimony you mentioned that one of the things that you were concerned about was abilities of an individual to replace another. Do you have any specifics were an individual was called back and any (maybe for a Fireman to act as an Engineer, or an Engineer as a Captain) where possible life was in jeopardy because of lack of experience? MR. HOLLE: Yes. To -work out of rank? I can't recall that we have ever had a problem during an emergency where the person could not function in the capacity he was at. We had a move up a couple of weeks ago when the Captain asked to have the Fireman that was acting as an Engineer replaced with someone else because he didn't feel he was qualified. I,myself,was an acting Captain at Station 4 and I was given an Engineer at the time - CITY COUNCIL Grievance Hearin December 16, 1974 Page Seventeen a Fireman that was told to act as Engineer that I did not feel was qualified. COUNCILMAN TICS: Going back several years ago, when, from what I gather here, this was common practice to replace rank for rank... MR. HOLLE: No, it wasn't before. That is why we wanted it... COUNCILMAN TICE: Didn't we do this at one time? I gathered we were doing it at one time. MR. HOLLE: No, not to my knowledge. There are times when we replace a Captain with a Captain, but usually they mve up until they can't move any more people. For instance, we've moved up before where we have had to take the Rescue and the Truck out of service, where there was nobody to drive. And, if anybody else called in sick, they had to call in, say, a Captain to work in a Captain's position because otherwise you are going to take a Fire Engine out of service whether it is at Station 2 at Cortez Park or Station 4, wherever it might be. But, they run until they do that and then you just have to call someone in. COUNCILMAN BROWNS: Mr. Holle, you stated that you had a side agreement with Captain Short on the replacement of personnel. Was there any specific time definition given to from what date to what date that you would allow this to happen? MR. HOLLE: We said we would not push the 2.3 of the rank for rank while we were trying (meaning the Fire Department Staff) to get the money budgeted for the Paramedic Program. One the Paramedic Program went into effect, which would be this September, the way our manning would be, they would not have the men to move around. So, indirectly we were coming back to a form of constant manning which the City negotiators, in the two years that I have dealt with them, would not talk about. They felt that the City had to right, and we more or less agreed, that if they didn't want to have an Engine, say at Cortez Park, they did not have to have one. So, they would never hold to any form of constant manning. So, we,more or less., agreed that if they didn't want to have any Engines in West Covina, that was their business. But, we felt that we to ourselves especially, that we felt that we wanted qualified people, and by qualified you take a test and the oral like I explained, and then you had • a qualified person acting in the.rank that all of the others depended upon. Whether it is an Engineer - if you have a Fireman that panics when he doesn't put his pump in gear, and you have a = 17 - • • CITY COUNCIL Grievance Hearing December 16, 1974 Page Eighteen and you have a Captain and a Fireman in the house, and you are not getting water to them, well then, you have an unqualified person. Supposedly through our testing procedures here within the City, you would have a qualified person that would know what to do when the pump wasn't in gear - why the water wasn't going through the lines to keep those people safe. Thats what we wanted. COUNCILMAN BROWNE: One other question. You, I believe, inferred that even though a man is an Engineer on the Department, and has qualified through examination, and so forth, that you say he may not be a qualified individual in your eyes? MR. HOLLE: That is correct. Possibly due to lack of exposure ... for instance, the Truck. I believe I took you and the Mayor for a ride on Fire Service Day. You get an un- qualified person operating those controls, he can tip the truck over, kill the people in the basket, kill the people below him, whatever. So, I mean you have to be exposed -to its you have to have the training. That is why we go to Covina Drill Tower and -- drill around the station - to keep ourselves exposed to these things. If a person isn't, then that is when we have the problems, or could have the problems. COUNCILMAN BROWNS: Who sits as a screening board as far as qualifications are concerned to determine whether a man is going to be an Engineer? MR. HOLLE: You would have to ask Fire Department Staff. REDIRECT EXAMINATION BY MR. BENNETT: Mike, on any occasions by policy in the Fire Department where you have to be replaced on a rank for rank basis, is there occasion, for example, where an employee may be'off or want to be off? MR. HOLLE: Well, yes, when we ... for instance, we have a right to trade shifts that we renegotiated this last year. By trade of shifts, I mean when, for instance, I was scheduled to work this last Sunday. I wanted to take ... Well, say for instance I was supposed to work tomorrow and I wanted the,day off. We have the right once a month to trade shifts. So, I would call, being an. Engineer, I have to call another Engineer and see if he would work for me, and then I would work for him at a later date. But, I cannot get a Fireman to work for me, and I cannot get a Captain to work for me. I have to work within the Engineer's rank. i CITY COUNCIL Grievance Hearin; December 16, 1974 Page Nineteen Q. So, if it for the convenience of the employee, if you want to be off on a given day or have a need to be off, the Department's policy is - I want to make sure that this is your testimony, is that the only way you can be off, by trade, is that there must be an Engineer replacing you. A. Yes. Q. A Fireman cannot replace you? A. That is right. If a Fireman wants off, he has to get a Fireman; if an Engineer wants off, he has to get an.Engineer; a Captain has to get a Captain. Q. I see. So, we have two policies. One, when it is for the convenience of the employee, the Department has ascertained that we must have a rank for rank replacement. The second, which we negotiated in 1973, is a rank for rank replacement which unfortunately did not take place until April of 74. It was our understanding it would continue; however, in September of 74, the Department discontinued the rank for rank replacement at their desired need. Mike, you were asked by Mr. Counter earlier how do you have personal knowledge about replace- ments. How large is the Fire Department of West Covina? A. I believe there is 62 men. time, generally? Q. How many men are on duty at any given A. One-third of those. Q. How many stations are there? A. Five. Q. Is there much communication amongst those? A. Yes. Q. You think you probably know who the hell is in Station 2 tomorrow? A. Every day we come to work they publish a daily roster so you know who is at each station. Q. So you are very much aware of what is going on and who is replacing whom, and this kind of information? A. Yes. Q. It is not like the City of Los Angeles where you may have a few thousand Firemen and you don't even know each other? A. No. CITY COUNCIL Grievance Hearin December 16, 1974 Page Twenty Q. Now, Mr. Counter asked you a question in regards to those few cases in which the Association agreed that during the period of April of 74 to September of 74 to permit because -of a great deal of need some move up on a non - rank for rank basis. What was the reasons why did the Association do that? A. Well, we had nine men going to Paramedic School. We had vacations during this time. And, there just were no enough men to makeit physically possible to have everybody replaced rank for rank. Much less moving up out of rank, we were moving down out of rank.in order to keep the equipment in service in the City, Q. Are you telling me that instead of being hard nosed and filing a grievance, and demand that the Department live up to the agreements that you had with them - both in writing and verbal, that you went just a little bit further because of an obvious need in this area in a few cases? Is that correct? witness at this time. A. Yes. Q. I have no further questions of the RECROSS EXAMINATION BY MR. COUNTER, Mr. Holle, I believe that your testimony was that on a trade of shift situation this is always done rank for rank. MR. HOLLE: That is correct. Every time I have had to trade, I have had to trade within my same rank. Q. Do you know of any situation where in a trade of shift.situation it was not done rank for rank; namely, it was done on an acting rank basis? A. Yes. Q. I have no further questions. REDIRECT EXAMINATION • BY MR. BENNETTt I would like to introduce at this time Union Exhibit 2, which is a memorandum from the City Manager, dated January 12, 1973, to Mike Holle, President of the Fire Association. CITY COUNCIL Grievance Hearing December 16, 1974 Page Twenty -ones (Mr. Bennett had only one copy of the memorandum, so the entire memorandum was read into the Hearing.") "To: Mike Holle, President of the Firemens Association, Froms George Aiassa, City Manager, Subject: Grievance • Involving Trade of Shifts, This memo will confirm an agreement made with you in regard to the Fire Association,'s grievance involving trades of shift. This agreement was reached during a meeting held in the City Manager's Conference Room on Friday, December 29, 1972, with the following in attendances Chief Wetherbee, Leonard Eliot, Mike Holle, Gary Duvall. Pursuant to this agreement., the policy on trades of shift, discontinued in January of 72, will be reinstated, effective January 1, 1973, in accordance with the following guidelines: (1) Each member is entitled to one unrestricted trade per month; (2) Trades of shift are only permitted between personnel of equal rank; (3) Trades will not be accumulated; (4) A trade consists of any one of a number of hours from 1 to 24; (5) To be eligible for a trade of shift, the member is to first submit a request for a vacation, if the vacation request must be denied, the member is then permitted to submit a trade request. This program is to be administered through the Fire Department through the on duty Battalion Chief, acting Battalion Chief,or designated Captains. Signed, George Aiassa." Q. Mike, I want you to re -read paragraph 2 for us, please. A. "Trades of shifts are only permitted between personnel of equal rank." Q. Thank you. QUESTIONS BY CITY COUNCIL MAYOR SHEARER: It is correct, though, that Section 2.8 of the current Memorandum of Understanding,approved by the City Council sometime past, does not include that wording. It does not as a matter of Memorandum require that trade of shifts be between equal rank. That is a matter of administrative policy. Is that correct, Mr. Bennett? MR. BENNETTs You are making reference to the 74-75 Memoran- dum? MAYOR SHEARER: Yes. Section 2.8. MR. BENNETT: "Trade of shifts shall not be allowed where such trade will result in overtime compensation for either of the employees involved." I don't think there is any direct conflict. - 21 - CITY COUNCIL December 16, 1974 Grievance Hearin: Page Twenty-two MAYOR SHEARER: That is the only reference to trade of shifts in the Memorandum of Understanding. MR. BENNETT: Yes sir. Also, in Memorandums of Under- standing, of course, they, unlike many labor agreements, do not • include - they are not inclusive, they are simply - they simply represent many of the changes that have taken place or been added to, rather than all of the terms and conditions of employment. Mr. Gary Duvall took the witness stand and was sworn in by the City Clerk. DIRECT EXAMINATION BY MR. BENNETT: Will you please state your name and employ- ment history with the City of West Covina for the record, please. MR. DUVALL: Gary D. Duvall. Employed as Administrative Assistant to the City Manager from March 7th, 1972 through June 30, 1973, and, as an Assistant to the City Manager from July 1, 1973 through July 3, 1974. Q. Thank you. Mr. Duvall, are you here as a witness of your own free will, without any enticement of any- thing of any value? A. Yes. Q. Just want to make that clear. And, you are testifying as a third part witness? A. Correct. Q. Are you familiar with the two exhibits - Joint Exhibits 1 and 2? A. Yes. Q. I'd like to direct your attention, Mr. Duvall, to Joint Exhibit 1, Article 2, Subparagraph 2.3. Would you read that paragraph, Mr. Duvall? A. "Article 2, Subsection 2.3, entitled replacements: Where possible the Department will make replacement assignments from within the same rank as the absent employee, provided that the replacement is fully qualified to perform all of the duties required." Q. I'd like to direct your attention to • Joint Exhibit 2, the same paragraph and article. Tell me if that is the same language that you just got through reading. A. Yes, it is. Q. Thank you. Will you please explain to us what that language means to you in terms of your contacts, your experience. - 22 - • CITY COUNCIL Grievance Hearing December 16, 1974 Page Twenty-three A. I regarded it as a safety valve mechanism covering those occasions where management found them- selves unable, for whatever reason, to replace rank for rank. Q. Does that language then indicate to you that, that except for those safety - or those impossibilities, I should say, as indicated there, management will replace consis- tently on a rank for rank basis? A. That is correct. Q. When you were serving in an official capacity with the City of West Covina, did you see that language? A. Yes, we did. Q. Would you explain to us in what context you became familiar with that language? A. During negotiations in 1973. Q. What occurred after that language was adopted, if anything, that brought it to your attention? A. I'm sorry, I'm not sure I understand... Q. After the language was adopted in 1973- 74, you saw the language, did you have any reason to believe that this was going to cause a change in the past practice? A. Definitely. Q. What caused you to have that belief, that it was going to be now necessary to change things? A. We were aware, of course as management, that this would result in additional salary expenditures. And, in several discussions that I had with Acting Chief Short, he expressed his dismay at this particular provision of the Agree- ment and that he was fearful that it might.very well cause the Department to exceed their allocated budget salary account, and that it would also complicate scheduling problems. Q. Thank you. Now, direct your attention to Joint Exhibit 2, which deals with the years 1974-75, same paragraph and language. Do you recall having any conversations or participating in any meetings in that period of time in regard to this language? A. No. That is, are you referring to the negotiations of 74... Q. Yes. The 1974-75 negotiations. • A. Oh, I'm sorry. Yes, definitely, there were discussions during negotiations in 1974. - 23 - C� CITY COUNCIL Grievance Hearing December 16, 1974 Page Twenty-four Q. I see. Were there any proposals to change the language that you recall? A. No, because at that time management was replacing rank for rank and it was regarded as a mute issue. Q. I see. Until you heard such testimony here today, were you aware of any side deal, or agreement, betweeen Acting Chief Short and Mr. Holle? A. No. Q. That would have negated the language or postponed it? A. No. Q. Was it then you understanding that commencing with the Agreement of 1973-74 that the change in practice was going to occur? A. That is correct. Q. And, it was then your understanding in the 1974-75 negotiations that the practice was in effect as the language in the Agreement called for? A. Correct. Q. I don't have any further questions at this time, Mr. Mayor. CROSS EXAMINATION BY MR. COUNTER: Mr. Duvall, directing your attention to the 1973 negotiations of the Memorandum of Understanding, Joint Exhibit 1, I take it you were not present when the language that is con- tained in 2.3 was discussed and agreed tot is that correct? MR. DUVALL: Correct to the later, not to the former. Yes, there was discussion prior to my withdrawal from the negotia- tions concerning this particular issue. Q. Did you ever see that language that now is contained in 2.3 of both Memorandum prior to the time it was actually negotiated and became part of the Memorandum? A. Not formally written, no. Q. At what point in the negotiations did you withdraw from the negotiations in 1973? A. During the month of July, I believe. Approximately three -fourths to 80 percent of the negotiations had been concluded by that time. Q. But this language that is in 2.3 was not agreed to by that point in the negotiations? - 24 - CITY COUNCIL December 16, 1974 Grievance Hearing Page Twenty-five A. No, we had not reached an agreement at that time. Q. During the 1974 negotiation, did you make any investigation as to whether or not the Department was • replacing on a strict rank for rank basis? A. I can't recall of any. Q. I have no further questions. QUESTION BY CITY COUNCIL MAYOR SHEARER: Mr. Duvall, in your capacity with the City, you indicated you were involved with the negotiation process. Were you also involved with any of the fiscal matters that are related, costing out of benefits that are agreed to. MR. DUVALL: Yes, I participated. MAYOR SHEARER: Did you indicate, based on your understanding of Section 2.3 and the input that you got from Chief Short who expressed a concern, I take it from your testimony that he did not think there was enough money in the 3-4 budget, did you pass this information on to anyone so that someone else was aware that there might not be sufficient funds based on your's and Chief Short's interpretation of Section 2.3? PAR. DUVALL: Yes, I had discussions prior to that and subsequent to with Mr. Eliot and Mr. Bahn in regard to what the concept of constant manning could do to our budget. And, it was for that reason that management was unalterably opposed to constant manning. MAYOR SHEARER: There would be an impact on the fiscal aspect of the budget if Section 2.3 as interpreted by you and Chief Short. MR. DUVALL: Right. Any form of rank for rank replacement would cost more money. MAYOR SHEARER: When you pointed that out to other members of City management, was there any discussion at that time, to the best of your recollection, of what 2.3 really meant? MR. DUVALL; I don't think anyone was•more aware of what would take place than Mr. Eliot. And, this was obviously a . concession on the part of management in the give and take bargaining situation. Management would not voluntarily give away constant manning or any form of constant manning. - 25 - CITY COUNCIL December 16, 1974 Grievance Hearing Page Twenty-six MAYOR SHEARER: Is this constant manning? MR. DUVALL: It is a modified form, certainly, and that is why I indicated that, to a degree, it was a safety valve mechanism. And, it was my impression, that although opposed to • • constant manning, there would at least be a good faith effort to replace rank for rank. COUNCILMAN TICS: Mr. Duvall, back in 1973 you were part of the negotiating team. What was the Staff's interpretation - the negotiating Staff's - City Staff's, interpretation of the words "where possible"? What specifically was meant by "where possible"? MR. DUVALL: Apparently I wasn't sufficiently explicit in my previous address to that. It was my understanding that"where possible" was a mechanism which would preclude problems that might develop in the event management couldn't, for whatever reason, that meaning illness, injury on duty, vacation or leave of absence, replace on a rank for rank basis. COUNCILMAN TICS: Was there anything at the time thought about the number of calls would be made as far as the rank for rank - how many Captains would be called to see if they were available, or Firemen or Engineers? Anything specifically? MR. DUVALL: Well, we anticipated that it could very well involve some considerable effort on the part of Departmental Staff. COUNCILMAN TICE: But nothing more specific than what you have said? MR. DUVALL: No, there was no effor+f: ,,Y be totally ob- jective about it. MAYOR SHEARER: Thank you very much. Mr. Larry Kliewer took the witness stand and was sworn in by the City Clerk. DIRECT EXAMINATION BY MR. BENNETT: Please state_ your name and rank and years of service. MR. KLIEWER: My name is Larry Kliewer. I am an Engineer and I have been with the City almost 13 years. Q. Larry, did you attend the 1973-74 • .negotiations? A. Yes. Q. Do you recall the issue at hand that we are talking about this evening as being discussed at those negotiations? A. Yes, I do. _ 26 - CITY COUNCIL December 16, 1974 Grievance Hearing Page Twenty-seven Q. Would you repeat in your own words what your recollection is? A. When the issue was first brought up, I recall Mr. Eliot - when we were asking for rank for rank, he seemed to be a little shocked that this wasn't the policy. He • assumed this was the policy that we were following and we explained that we did have move ups and what was transpiring and why we wished to change. And, so when the first wording was brought back to us, it stated that where possible the Department will endeavor, to replace rank for rank. We didn't agree with that wording, we thought it was too vague. We wished it to state the Department will replace rank for rank. And, so I believe it was Mr. Eliot that brought up the point that or possibility that we call all of the Captains and couldn't get one to come in, the City needed some type of a safety valve, so to speak, to have an out. So, you would have to have move up in that case. So, with that interpretation we agreed that the "where possible" would be fine left in the Agreement. Q. So, it is your understanding then that the qualifier "where possible" was based upon the City had made a diligent effort to get hold of a Captain, or whatever the rank might be,. and couldn't get someone to come in, then certainly they had to get someone to fill the position.. Is that correct? A. Yes. Q. Did you attend the negotiations in 74-?5? A. No sir. Q. I see. And, you attended the meeting with Mike Holle and Acting Chief Short in late 1974; is that correct? A. Yes, I did. Q. Well, will you tell us what you recall about that meeting? A. Well, as Mike Holle stated, Chief Short came to us - we had called the meeting to begin with because we had complaints since the new roster or list come out, the move up list, and we were having the same move up problem that we had always had, and the men had stated here was a violation of the contract. So, we realized this and called a meeting with Chief • Short to discuss the matter. At that time he brought up the Paramedic Program. Basically, the fact was there wasn't enough overtime money budgeted for that year to cover this thing. Along with the fact, the Paramedic Program was coming into being and he was going to have to show a savings of money in order to sell the - 27 - �J CITY COUNCIL Grievance Hearing December 16, 1974 Page Twenty-eight Paramedic Program in which we were greatly in favor of. So, he asked us to kind of back off on the thing and we agreed that we wouldn't push the issue. He also stated that because of the Paramedic Program, in April we would have a constant manning type of situation because having so many people gone, in order to replace them, there really shouldn't be that much of a problem. Q. Thank you. You've heard the testimony of Mike Holle, and we attempt to be as brief as possible in these hearings; is there anything that you can recall that Mike testified to that you disagree with? A. No. Q. There is not. I have no further questions of the witness at this time. CROSS EXAMINATION BY MR. COUNTER: As I understand your testimony regarding the first proposal on the language that eventually was added to the Memorandum, Section 2.3, in 1973, this language was proposed by the City representative; is that correct? MR. KLIEWER: I don't recall a written proposal that we made that included that language. I know we did have some verbal proposals. The only thing that I remember in the last meeting, of an actual written proposal, was that the City had made a copy. MR. COUNTER: I have no further questions. QUESTION BY CITY COUNCIL (Mayor Shearer called for questions from the Council. There were none.) Mr. Charles Bahn took the witness stand and was sworn in by the City Clerk. DIRECT EXAMINATION BY MR. BENNETT: State your name, rank and years of service with the Department, please, Chuck. MR. BARN: My name is Charles Bahn. I have been an Engineer with the West Covina Fire Department for about 13 years now. I am now currently President of the West Covina Firemens Association. Q. Did you attend any of the 1973-74 negotiating sessions, Chuck? A. I attended one meeting only. I replaced my colleague while he was on vacation. - 28 - • • CITY COUNCIL Grievance Hearin December 16, 1974 Page Twenty-nine Q. Was that one of the earlier meetings, or one of the later meetings of the... A. It was my understanding this was the last .formal meeting we had at the Union Building. Q. I see. By Union Building, you mean the Teamsters Union Building? A. Teamsters Union Building, yes. Q. You recall who was at that meeting? A. Yes, Mr. Eliot was there; Nick Counter was there, yourself, myself and Larry Kliewer. Q. I see. You recall the issue at hand tonight being discussed at that meeting? A. Yes, I do. Q. Would you tell us in your own words then what you recall about the matter relating to this issue? A. Well, the issue first came up, to my recollection, this was the first issue we went unto in that series of negotiations. The City had come back with a proposal on this specific issue. And, prior to this we had problems, we felt, in the area of selling this contract that we were negotiating to the people. We had made contact with the City personnel on the idea of we need something in there, some wording to help this contract be a little more compatible to our people. So we could go back and have a reasonable security of selling this contract to our people. Ah... Q. Excuse me, I want to interrupt you a second there, Chuck. A. Yes. Q. When ;,you say, "We need something in the CD contract," you mean you are talking about additional concession from the City, you mean something meaningful; or,are you just talking about some eyewash? A. No, something that we could go back and - somethinp, that had some teeth in it, something that they could read and know that the City has sown good faith and come up with some- thing; that is going to benefit us as Firemen in the City here. Q. Did you consider this issue of replace- ments to be a meaningful issue, that could well cost the City some money? A. Yes, we knew this. Q. This wasn't something that wasn't of any value to us in terms of dollars and cents? - 29 - CITY COUNCIL Grievance Hearin December 16, 1974 Page Thirty A. No, this was quite a moral factor, and we were also aware of the fact that there would be some expenditures involved for the City. Q. Well, how did the Firemen directly benefit in terms of money if this Department had lived up to the Agreement? A. Well, the people as we now man with.the four man Engine Company at Station 2 and Station 1, instead of running two men short, we would maintain the amount of personnel that we have on duty so, consequently, more individuals would be called in to work on the rank for rank position. This would, in this case wind up as overtime to the personnel of the Fire Department. Q. So the employees, personnel of the Fire Department, could expect to receive additional income by virtue of the observance of the Agreement. Is that correct? A. That is correct. Q. Ok. Do you recall any discussion at all in terms of what the past practice in the City had been prior to these negotiations at that session which you attended? A. I remember that the City people, Nick Counter and Mr. Eliot had brought back a proposal and that the wording was based on - we thought it was very general, and would not accomplish what we had in mind. It was very vague and there was a lot of wording in there that would - we felt were loop holes for the City to not honor the document or that part of it if we left it in. So, we had quite a bit of conversation directed to them and directed back and forth as to what we wanted this for, and why we wanted it, and the reasons for having it in there. Q. So, the Agreement as reached... Well, let me ask you this, do you recall that or how "where possible" was defined at all in that session? A. Yes, we discussed the "where possible". We wanted the other words deleted. There were some other words far into it that would indicate "well, we could possibly," - general terms. So in reference, Mr. Eliot directed a comment to me which indicated to me right -off that he understood exactly • what we were saying because he asked me, "Well, if we call up all of the Captains, and we can't get one, where does this leave the City; how do we fill that position?" And, I said, "Well, we can understand this. This is a logical question; something that could. happen. So, in order to facilitate completing the contract, we stated that if you agree with what we are saying, - 30 - CITY COUNCIL December 16, 1974 Grievance Hearing Page Thirty-one if you understand this contract as so stated, then you realize that by leaving in that "where possible" is only going to give the City an out after they have made a reasonable attempt to fill these positions rank for rank, we will concede to leave that "where possible" in. That is the basis why we left the "where possible" in. Q. You remember, of course, hearing the testimony here this evening of Mike Holle. Once again, in an effort to try to speed this thing along, is there anything that you heard Pike testify to that you disagree with? A. No sir. Q. I have no further questions at this time. CROSS EXAMINATION BY MR. COUNTER: Mr. Bahn, the negotiation session that you attended in 1973 at the Teamster Union Hall, I take it Mr. Duvall was not present at that; is that correct? MR. BARN: That is correct, yes. MR. COUNTER: I have no further questions. QUESTION BY CITY COUNCIL MAYOR SHEARER: I have one question, Mr. Bahn. You indicated there was an apparent awareness on a number of people's part, including yourself, that there was some financial implication with regard to your interpretation of Section 2.3. MR. BARN: That is correct, sir. MAYOR SHEARER: At any time, to your knowledge, did anyone connected with the Fire Association, your negotiator, anyone with the Fire Association check to see if the budget that was presented to the City did contain funds that would satisfy your interpretation of Section 2.3? MR. BAHN: As far as myself, due to the fact that I was actually only at one meeting and was not really that involved with negotiations clear through, -I -can't speak for the other two, but as far as myself, no, I had no knowledge of that. . MAYOR SHEARER: You don't know if anyone else did? MR. BARN: I do not know, no sir. COUNCILMAN TICS: The words "where possible" again, to your knowledge were kind of a general interpretation, nothing specific? Specific in the way they were used as far as... - 31 - 0 CITY COUNCIL Grievance Hearing December 16, 1974 Page Thirty-two MR. BARN: They were specific in the sense that in the discussions we had with City management people, they indicated to us what the words "where possible" would mean, and we said yes, we concur if this is what you are using it for. COUNCILMAN TICS, What is your understanding of what was said then? MR. BARN, My understanding was the City would make all possible attempt to call rank for rank, and that if for what .reason would be - in fact, we even talked about it, there would be some reason given if they didn't, but we thought they would do all possible to get the rank for rank, and if not, this would be a relief for the City to fill a position. COUNCILMAN TICE: Would they exhaust the list of available individuals? MR. BARN: My understanding; it was. They would call every Captain, if it was a Captain's position, they would try to contact every Captain to see if he were available, and if not, then they would do the next best thing. CLOSING STATEMENT BY MR. BEiNETT: Actually, in the beginning of our presenta- tion here this evening, we told you that we would demonstrate to you through witnesses and documents that the practice prior to negotiations, Meet and Confer period of 1973-74, was not to replace employees on a rank for rank basis. Therefore, it was a very legitimate proposal by the employees to gain this major benefit. They gained the benefit with the knowledge of management that it was a major benefit. It was not incumbent upon the employees, of course, nor the repre- sentatives to determine whether or not City ma.nagment had provided sufficient funds in the City budget to present to the Council. We had a hard enough time getting copies of it sometimes, let alone to determine whether or not there was adequate money there and what and how the money would be spent. In addition to that, we showed through the witnesses again that the City's representatives agreed to the Froposal as modified on a compromise basis. We showed that because of inexperience and extreme eagerness to please the Chief and management of the . Department that we modified or delayed the effective date of the agreement through the arrangement between Nike Holle and Chief Short. That agreement was informal, it was sought by the City's representatives in terms of Chief Short, that no one else had knowledge of it, and that all it did in effect was delay the effective date of paragraph 2.3 several months. - 32 - CITY COUNCIL December 16, 1974 Grievance Hearin: Page Thirty-three We have shown through testimony of Mike Holle, Mr. Duvall that at the very least, Chief Short was very much aware of the impact of paragraph 2.3. He was alarmed at the impact, to the point where he sought out other people, in- cluding representatives of our organization, to try to modify it. So, it was not a case of the City's representatives saying, "Well, we'll agree to something so that we can continue the practice we have been practicing all along." They so well knew that this was a change of practice. And, the management of the Fire Department knew it as concern was demonstrated by the conversations that Chief Short had with the witnesses here this evening. So, it was not a matter of continuation of business as usual.. It was a departure, a major concession was made across the negotiating table We have showed that the policy, and one of the reasons that we disagreed with the policy, the policy was inconsistent on the trades. However, we have these elements involved heret (1) Was there a proposal made at the bargaining table? (2) Was there compromise and agreement reached? (3) Did the parties understand what they had reached in terms of an agree- ment? and, (4) Did one of them violate it? I submit to you, gentlemen, that we have conclusively proven our case. Thank you. ----------------- OPENING STATEMENT BY MR. COUNTER: I would like to make a brief opening state- ment, if it please the Council, to kind of put this issue into clear perspective. I think the evidence will show, in terms of the practice of the Fire Department, that there are basically three types of situations that we are dealing with here. And, I think it is very important that the Council fully understand the distinction between these three types of situations. The first type of situation - and, all of these situations involve a situation where (that is a lot of situations) a man is absent or one or two people are absent on a particular shift and the question is how are you going to cover the Department on that particular shift. So, we are talking about filling in in the case of absenteeism, for either scheduled reasons such as vacations, or unscheduled reasons such'as sickness, ill- ness and that sort of thing. Now, there are three ways that this can be accomplished'to cover the Department on'a particular shift. The first way is the so-called move up system where instead of calling someone in who"is off on the shift, the Department simply utilizes existing personnel on that shift to cover the shift. For example, if there was only one Captain who was absent for illness - called in sick, the Depart- ment would simply move up a qualified. Acting Engineer, or, I mean Acting Captain who would'be an Engineer, similarly it would move up a Fireman to an Acting Engineer position, and use one of the extra Firemen on that shift to fill in on that particular company where the Fireman moved up to'Acting Engineer. That is a very simple example of the move up situation. - 33 - CITY COUNCIL December 16, 1974 Grievance Hearing Page Thirty-four The second type of situation occurs where there are more people absent than the Department is able to cover for throumh this move up process. And that type of situation, as the testimony will show, and even the testimony of the members of the Association so far establishes, that in that type of situation the Department would call in on a rank for rank basis. So, if, for example, after the move up has taken place, you still had a Captain opening, the Department would then call rank for rank to try to obtain a Captain to come in for that particular Captain. What happens if that. situation occurs and the calls are made to all available Captains and the Department is unable.to locate a Captain to come in on a rank for rank basis? That leads to the third possible situation. And that, in our opinion, leads to the reason for the words "where possible". In that type of situation, after exhausting all of the personnel at the Captain rank, the next step would be to call some- one in who is off that shift to come in on an Acting Captain basis. So, I think it is very important that you understand the distinction between these three situations. Our contention, very simply is, the language that the Union argued so strenuously for really covers the last two situations. Thats all. It does not cover the move up situation, and was never intended to. And, the testimony will indicate to you that the practice was the same before the 73 Memorandum, it continued right on through the 73-74 Memorandum, and it is continuing today. Never a change in the practice. But, what did change was a real intent on the part of the City in a situation where move up did not take care of the problem, that in calling people that are off that particular shift, calling them in, they would attempt to replace on a rank for rank basis. Where that was not possible, they would call someone in on an acting basis. If one looks at the language, and doesn't get too hung up on all of the rhetoric, it seems to us it is quite clear from the terms used in 2.2 and 2.3 that this is in fact the intent of the parties. The reason I refer to Section 2.2, the section on Vacancies, is that that language, very significantly, deals with first of all an acting pay situation, it provides that after a. certain number of shifts that in an Acting rank position the Person fillin,- in would be entitled to additional pay. In the 73-74 Memorandum the negotiated provision ended up with this nay commencing in the third shift, and the change was made this last ne-otiations to pay commencing with the first shift, dealing clearirz with the acting pay situation, acting position situation. The language goes on to clearly state also that*the employee must be ully oAua.lified to perform all of the duties of that rank. The qualifications requirement is quite clear. `That leads to Section ?.3 and the clear construction of that language leaves no room for doubt, really, in this case. The "where possible" language, I think I have covered in the situation where an attempt is made in calling in to replace on a rank for rank basis and the Department is unable to do so. The proviso in 2.3, to me, is the short answer to the Union in this case. If the parties really intended to force the Department, where possible, to replace on a strict rank for rank basis, there would be absolutely no need for the language starting with the words "provided that". So, if the Union was really correct in their interpretation of this language, there should be a period after the word "employee", and the language would read, if they were correct, "Where possible the Department will make replacements assignments from within the same rank as the absent employee." It goes on, gentlemen, it goes on the state: "Provided that the replacement is fully qualified to perform all of the duties required." Now, what could that language possibly mean - 34 - CITY COUNCIL Grievance hearing December 16, 1974 Page Thirty-five 0 other than to cover the move up situation. The person who fills in on an acting rank basis. Otherwise, if the man is of the same rank as the person who is absent, obviously he would be qualified to perform the work. So, you wouldn't need that language if you were replacing strictly on a rank for rank basis. The clear reason for the language was two -fold. One, to clearly cover the acting pay situation, the acting rank situations and, secondly to meet the very real concern of the employees of the Department that when the Department was using this move up procedure that the replacement would, in .fact, be fully qualified. So, I submit, that if there is any grievance here to be considered, it would be on whether or not a replacement in a particular situation was qualified or not. I submit that is not the grievance before you. The grievance before you is whether or not this language has been violated; and, it is quite clear that it has not been violated and has been consistently followed throughout the life of the 73-74 Memorandum and is continuing today. With that brief introduction, I would like to call,as our first witness on behalf of the Department, Leonard Eliot. Before Mr. Eliot takes the stand, I want also the Council should understand our position. There is a well- known axium in interpreting agreements, especially in the labor field, that where the language is clear on its face, as we contend that it is here, that really the Tribunal hearing the matter should not get into the negotiating history and the intent of the parties. Where it is clear on its face, the language controls. Our contention is that it is clear on its face. However, if the Union wants to get into the negotiating history, we are prepared to provide some rebuttal testimony and that is the purpose for calling our witnesses. Otherwise, we would simply rest on the language itself. So without waiving that contention, we will proceed with two witnesses, and the first is Mr. Eliot. Mr. Leonard Eliot took the witness stand and was sworn in by the City Clerk. DIRECT EXAMINATION BY MR. COUNTER: What is your name and position? MR. ELIOT: My name is Leonard Eliot. I am City Controller and Assistant to the City Manager. Q. And, how long have you held that position, Mr. Eliot? A. City Controller, approximately 8 yearc; Assistant to the City Manager approximately 2 years. Q. Did you participate in the 1973 negotiations which lead to the Memorandum of Understanding that . is in evidence as Joint Exhibit 1? A. I did. - 35 - CITY COUNCIL Grievance Hearing December 16, 1974 Page Thirty-six Q. And, what was your capacity in those negotiations? A. I was a member of the Management Negotiating Team. Q. Do you recall any proposals on the part of the Association, Union representatives, regarding the subject of constant manning? A. Yes, I do. Q. What is your recollection of their proposal and the position taken by the City duringthe 73 negotiations? A. In 73, the topic of constant manning was raised by the Fire Association. It was immediately rejected by the management team as not feasible because of fiscal reasons. The later proposal was made to recall, in all cases., employees from off duty to replace employees absent from the Department. This too, was rejected as a backdoor approach to constant manning by the Management Negotiating Team. I would. like to add that as well, at the last meeting Mr. Duvall had been removed from the negotiating team and during all periods of negotiation, I was the senior member of the negotiating; team having served on the negotiating team for the City during the prior two years to Mr. Duvall having been employed with us. I was quite aware of any impact of cost of constant manning, or any variation thereof, and without sanction from the Council or City Manager to grant such a concession, we did deny that particular item. Q. That was the position on constant manning; is that correct? A. That is true. Q. And what position did the City repre- sentatives take with respect to a strict rank for rank replacement provision? A. On a strict rank for rank replacement our position was that this was a backdoor approach to constant manning, and therefore was unacceptable for the same reason that constant manning was barring an acceptance by the Council and therefore was rejected. Q. Did the City representatives make a proposal as a possible compromise on the issue of rank for rank replacement? A. Yes, we did. - 36 - 5 • CITY COUNCIL Grievance Hearin; December 16, 1974 Page Thirty-seven Q. And, what was that proposal? A. During a certain period of this conversation, the Association had indicated that some of their unhappiness with the procedure of replacement, that is by move up, was that the Chief was using non -qualified people on the move up. And, of course, management felt that this was not proper, that probably the Chief was using qualified people, but in any case, objective criteria should be established and that people should be qualified on a move up basis. Therefore, on that understanding, the language of 2.3 was drafted by the management team with their counsel. Q. You are referring to 2.3 of Joint Exhibit 1; is that correct? A. 2.3, right. Q. Would you direct your attention to the proviso contained in 2.3, namely the words commencing with "Provided that the replacement is fully qualified to perform all all of the duties required. A. Yes. Q. What was the intent of the City's proposal_ with regard to that language? A. It was to reassure the Fire Association that the Department would use qualified people on a move up basis. That was the entire intent of the entire paragraph. Q. In connection with those negotiations, did you have the responsibility for costing out the impact of the various proposals on all matters? A. I certainly did as Controller. Q. So, for example, you would cost out the impact of the proposals on salaries; is that correct? A. That is true. Q. Did you in costing our the proposals and the proposed Memorandum of Understanding when it was submitted to the City Council., place any cost value on Section 2.3 of the 1973-74 Memorandum? A. No, I did not. It was a non -cost item. Q. Why do you say that? • A. Because the only thin; that 2.3 really provides is that when replacement is made on a,move up basis, that the person moving up will be fully qualified. - 37 - CITY COUNCIL December 16, 1974 grievance Hearing Page Thirty-eight expense to the City? Q. You do not view that as any particular A. No more than our past move up procedures would. cost. Q. As part of your responsibilities, do you prepare the various documents that go into the final adoption of the budget for the City each year? A. Yes, I do. Q. Did you participate in the preparation of the budget for the fiscal year ?3-74? A. Yes, I did. Q. In alligating monies for the Fire Department, did you alliate any monies for overtime to cover a strict rank for rank replacement within the Department? A. I did not. Q. With respect to the 74-75 budget, was any money alligated to cover overtime pay for Firemen in the case of rank for rank replacement? A. No, there was not any such provision. Q. I have no further questions. CROSS EXAMINATION BY MR. BENNETT: I'd like to direct your attention to paragraph 2.3 that Mr. Counter was talking about. See the in there "same rank"? What does the word "same" mean to you? MR. ELIOT: It is quite apparent that "same" is equal to .. . MR. BENNETT: "Identical" perhaps. PAR. ELIOT: Identical, same. We are talking about "acting", again, if you are referring to the paragraph... Q. I am referring to the paragraph - paragaph 2.3. The word "same" what does that mean to you? A. It means same. Q. Identical. Is that correct? A. I would say yes. Q. Would you agree it could mean identical? The word "same" is interchangeable... . A. Yes. Q. Fine, thank you. What does the word "rank' mean in the context of the Fire Department of West Covina? A. Usually the two ranks that we refer to are Captains and Engineers in the Fire Department. - 38 - CITY COUNCIL December 16, 1974 Grievance Hearing Page Thirty-nine Q. You have three ranks, actually you have more than three ranks, don't you? A. Yes we do, but... Q. How many ranks do you have? A. Not all are represented... Q. How many ranks do you have? A. We have Chief, Battalion Chief, Captain, Engineer and a Fireman. Q. I see. So you have the term "same" and you have the term "rank". Do you understand what that means, though? A. I've answered that already. Q. You are trying to tell us here in testimony that you are disregarding the words as they stand on their face, in definition, that you just got through defining for us in 2.3; is that correct? A. No, I am saying that when you move an Engineer up to a Captain, he is a Captain; therefore, you are replacing rank for rank. Q. How can you take a man from a lower rank and move him to a higher rank and say that you replaced him rank for. rank? A. You have. You pay him the extra money for it. He is qualified to act as a Captain. He is a Captain. Q. Well, he may not be qualified, as a matter of fact. A. Well then, a grievance should be filed on that matter. Q. TY;r. Eliot, has there ever been an occasion in your life when perhaps you did not prepare documents to 100 percent perfection? A. Undoubtedly. Q. I see. Has there ever been an occasion when perhaps you did not cost out items in an agreement to a fullest extent? z A. Never to my knowledge. Q. You have always done it perfectly then? A. Yes. Q. I see. I sure wish I'had you on my staff. No further questions. - 39 - CITY COUNCIL December 16, 1974 Grievance Hearing Page.Forty QUESTIONS BY CITY COUNCIL MAYOR SHEARER: Are there any questions? I have one of Mr. Counter to determine whether I ask Mr. Eliot the question. Who else are you planning to call as a witness? MR. COUNTER: Mr. Swartz. MAYOR SHEARER: Alright. I think the question that I have in mind would be more appropriate for Mr. Swartz. COUNCILMAN TICE: Its the words "where possible" again. Mr. Eliot, what was your interpretation of "where possible"? MR. ELIOT: The "where possible" applies to, provided the replacement is fully qualified, because in our minds there was even a situation where you would have a person who was not fully qualified to move up, but you would have to use him be- cause there weren't any bodies available and you didn't want to shut down a Fire Station. That was the purpose of having it there. RECROSS EXAMINATION BY MR. BENNETT: Mr. Eliot, that bothers me. If the intent of the language was "where possible" provided that the replacement was fully qualified to perform all of the duties required, why would we put all of these other.words in there - "...from the same rank as the absent employee."? MR. ELIOT: Well, as I remember the last meeting in ,your office, particularly with Mr. Bahn being present for the first time on the negotiating committee for the Association, the Association and the City Management Team had not reached an agreement for a .final Memorandum to be submitted. The feeling of the, at least as expressed by Mr. Hahn, that this language would help him to sell the Memorandum to his Association, even though he understood the meaning of it quite clearly. We were talking about qualified people, and he felt that the structure of the language would help sell it to his Association members for ratification. Q. Is that the testimony that Mr. :3ahn gave here this evening, his sworn testimony? A. That is not his testimony. Q. No further questions. --------------------------------------------- -------------------- - 40- 0 CITY COUNCIL Grievance Hearing December 16, 1974 Page Forty-one Yr. Harold Swartz took the witness stand and was sworn in by the City Clerk. DIRECT EXAMINATION BY MR. COUNTER: State your name for the record, please. MR. SWARTZ: Harold Swartz, Battalion Chief, City of West Covina. Q. Mr. Swartz, how long have you held the position of Battalion Chief for the City? A. Approximately three years now. Q. And, before that what was your... A. Fire Captain. Q. And, how long were you a Fire Captain? A. Approximately 11 years. Q. And, how long totally have you been employed by the City of West Covina? A. 20 years in February. Q. Your duties as Battalion Chief - do they include assignment of personnel to particular shifts? A. That is correct. Q. Co►zld you describe briefly for the Council what the practice of the Fire Department has been with respect to the so-called move up scheduling procedure. A. We have eligibility lists - a Captains Eligibility List, an Engineers Eligibility List, Qualified :acting Engineers List, experienced Firemen whom we use on move up, and if an Engineer is off sick, and we have an existing Captains List, we will move the people on that list up, excuse me, Engineers List, to fill that Engineers position. If there is not an Engineer available, or we have to make another move up, we have to use a qualified Acting Engineer, if there is one available. Q. These move ups occur all within the same shift; is that correct? A.. Thats right. Q. How long has this move up procedure been in effect in the City to your knowledge? A. As long as I have been here. Q. Was this procedure followed during, the fiscal year 73-74? A. Yes. Q. Was it followed consistently through the period from July of 73 through June of 74? A. Yes. - 41 - CITY COUNCIL December 16, 1974 Grievance Hearing Page Forty-two Q. Has this move up procedure been followed since July of this year? A. Yes. Q. Has the Department prepared a compilation: showing the number of people who have moved up to the next higher rank in acting position capacity over the period of July 1973 through August of 74? A. Yes. Q. I would like to show the witness and offer as an exhibit, City Exhibit 10 Mr. Swartz, is that docu- ment I have handed you, City Exhibit 1, a compilation to which you referred? Q. And, was this prepared from the business records of the Fire Department of the,City of West Covina? A. Made from our daily rosters. Q. Could you trace for the Council exactly what those figures mean over the period of time from July of 73 until August of this year? A. Well, they state month by month the amount of people that we moved up. Q. How many times was a move up made during; the month? A. In each case these move ups were made pursuant to this move up procedure which you have described for the Council. Q. Does the Fire Department have a policy with regard to trade of shifts? A. Yes we do. Q. In administrating that policy does the Department allow a trade of shifts between someone in an acting rank position within that particular rank? A. Acting rank position with that rank. An Acting Captain could could trade with a regular Captain within the rank. Q. So,.within that policy as well, the acting rank qualifies as that particular rank? • A. Right. This could be a case... right. Q. During; the 1974 negotiations did you have an occasion to advise Mr. Duvall of the existing move up scheduling procedure as it was being administered in the Depart- ment at that time? A. That is right. I submitted a memo to him on how we moved up. - 42 - CITY COUNCIL December 16, 1974 Grievance Hearing Page Forty-three Q. Ok. I'd like to offer as, once the witness has identified, as City Exhibit 2, a memorandum dated May 10, 1974, addressed to G. Duvall, Administrative Assistant, from H. M.Swartz, Battalion Chief, Subject: "Move Up" Scheduling Procedures, Acting Pay. A. Q. on or about May 10, 1974? A. Q. Did you prepare this memorandum? Yes. And, did you submit this to Mr. Duvall Yes, I did. I'd like to offer that as City Exhibit 2. I have no further questions. MAYOR SHEARER: While Mr. Bennett is contemplating a question or so, Mr. Wakefield has indicated to us, this is in regard to the Council, that he can remain until 7:00 and still make his appoint- ment in the City of Azusa. Are there any major objections to continuing to 7300, keeping in mind that we reconvene at 7s30 for interviews? We may have a late dinner. I think this matter is important enough to continue. (The Council agreed with Mayor Shearer, and the Hearing continued.) CROSS EXAMINATION BY MR. BENNETT: Do you have the City's Exhibit 1 in front of you? MR. SWARTZ: On the scheduling ... Q. Yes. A. Yes sir. Q. I direct your attention to April 74 through August 74, how do those numbers compare with the rest of the period of time that you have given us a report on? A. The numbers in April are lower. The reason is because we had less manpower; we sent our Paramedics to school. Q. And, you were replacing on a rank for rank basis at that time? A. We were replacing on a - we were calling Captains for Captains; we called in Captains for Firemen. Q. Did you... A. We called Captains for Captains... Q. Did you call in Engineers for Engineers? A. Right. Q. Did you call in Firemen for Firemen? A. Right. - 43 - CITY COUNCIL December 16, 1974 Grievance Hearing Page Forty-four Q. Alright. So you were replacing on a rank for rank basis before April 74? A. No, as far as... Q. I see. Thank you. Are acting positions used for trading, Chief? A. Yes. Q. They are. Are acting positions used for permanent replacements? A. Acting positions for permanent replace- ments? Q. If you have a man off on a long term illness, what kind of a position do you use? A. If a man is on the Captains List or the :engineers List, we will use him for that replacement. Q. On a long term illness? A. Yes. Q. Now, on a short term illness, like a one day, one shift illness, you do not use an acting position, do you? A. No, we move up. Q. Ok, thank you. So the relevance of Exhibit 1 and 2 - I really don't see very much there. Vtie all know that there have been acting positions around here for years for long term illnesses and for trading. I have no further questions. REDIRECT EXAMINATION BY MR. COUNTER: After Mr. Bennett's comments, perhaps I ought to have the Chief go into a little more detail, since t°r. Bennett did not apparently understand the procedure that is followed by the Department. Could you describe what procedure you follow in scheduling a particular -shift where you have several absences on a particular shift, either because of vaca- tions, illness for which you had advance notice, or illness which came up at the last minute. Could you go through briefly the procedure. MR. SWARTZ: Well, basically we have 20 people on duty. And, we allow two people off on vacation at one time. And, the Firemen at Station 1 and the Firemen at Station 2, the fourth man, they are used on a move up. Now, if we have a third man off duty, the two men are on vacation, if there is a. third man off because of sickness we call in rank for rank, whether it is a Captain or an Engineer. Basically, we use the two men for the move up, and if there is more than two people off, then we call ir.. -44- CITY COUNCIL December 16, 1974 Grievance Hearin' Page Forty-five Q. What would happen in a situation where you use your two men on a move up, and then you still had an absence to fill in for and you attempted to call in on a rank for rank basis and you were not able to obtain someone • on a rank for rank basis. What would you do then? A. Well, we would drop back to Engineer, and call him in. Q. As an Acting Captain? A. As an Acting Captain. Q. Was this practice followed from July of 73, and is it still in existance today? A. Right. Q. And the compilation of data contained on City Exhibit 1, does that show the number of times someone was moved up during those particular months under the so-called move up procedure? A. Thats right. During this period of time you were filling positions through this move up procedure you described; is that correct? A. Yes. Q. And, during this period of time when move up would not complete the shift, you also were also replacing on a rank for rank basis; is that correct? A. Thats right. Q. And, if the rank for rank calling did not complete the full staffing, you would then drop back to an acting pay situation. A. Yes. Q. I have no further questions. RECROSS EXAMINATION BY MR. BENNETT: I just want to make sure I understand this, Chief. It has been the practice of the Department in the past and it continues to be that acting positions are for trading and long term illnesses, right? MR. SWARTZ: That is the policy. • Q. In other words you don't take a Captain and replace a Captain with him on a long term illness? A. I don't understand the questions, what you mean. - 45 - CITY COUNCIL Grievance Hearin rank replacement means? December 16, 1974- Page Forty-six Q. Do you understand what rank for A. Yes. If a Captain is gone, then we don't bring in a Captain off, we replace him with... • Q. An Acting Captain.. Q. ...because we have two people to move up. Q. You replace him with an Acting Captain; is that correct? A. Right. Q. That is for long term illness or training, right? A. I would not call a Captain in for six months to fill a vacant position, for someone who has been off for six months. A. Alright, fine. Chief, I want you to think very, very carefully now, please. At the conclusion of the 1973-74 negotiations, did you attend any meetings in which Chief Short expressed great concern because of this provision in paragraph 2.3? A. I don't recall where he showed great concern. We were called to discuss as far as our manning standards; that is why I submitted my letter because their was a request of how we move people up. Q. Did you attend any meetings that you have heard any testimony about here this evening? A. No. Q. You did not? I have no other questions of this man, thank you. QUESTIONS BY CITY COUNCIL COUNCILMAN TICE: Before July 1973, I just want to get this point straight, did you call back on a rank for rank basis where possible? MR. SWARTZ: We moved up. • COUNCILMAN TICE: You moved up before that. MR. SWARTZ: And rank for rank. I mean to -.ill the positions. COUNCILMAN TICE: You filled the rank by movin- up. .and, you called back rank for rank. -4.6- CITY COUNCIL December lb, 1974 Grievance Hearing Page Forty-seven MAYOR SHEARER: Chief Swartz, Assuming today no one is sick, no one is on extended vacation, of course, no one is scheduled to be sick and hopefully it doesn't occur, no one is on vacation or Workmen's Comp, or whatever, as far as you know • tomorrow is - everyone is going to be on duty; alright, what, on your present practice, what is the maximum number of move ups - or shall we rephrase that - what is the maximum number of people who call in sick, emergency type off, that your present staffing; would accommodate? MR. SWARTZ.: Two. MAYOR SHEARER: Why is that? MR. SWARTZ: Because we.operate at a minimum of 18men and we have 20 men on duty. So we do not go below our minimum manpower. MAYOR SHEARER: Does this minimum manpower provide for what type of manning on a Fire Engine? MR. SWARTZ: A three man Engine Company. MAYOR SHEARER: A three man Engine Company. We have how many Engine Companies? MR. SWARTZ: Five. MAYOR SHEARER: Five Engine Companies. Where do these so-called extra two men work? MR. SWARTZ: We have Paramedics who are stationed at Station 1 and a Truck man at Station 1. MAYOR SHEARER: These are surplus. I think I heard some- where, one of the other testimonies, talking about a four man company, I believe at Station 1 and also Cortez. MR. SWARTZ: That is right. Those are the extra men that we use for the floaters. A Fireman at Station 2 at Cortez, can be sick and we would not call a Fireman in to replace him for sickness because we still have a three man Engine Company there. MAYOR SHEARER: Alright. I'm a little confused. The Paramedic men - the Paramedic people, they don't work at Cortez, do they? MR. SWARTZ: No, the Paramedics are assigned at Station_ 1. MAYOR SHEARER: Alright. So the ability of the so-called floaters isn't really because of the presence of the Paramedic operators, is it? Isn't it the fourth man - the so-called fourth man? MR. SWARTZ: We have four men before we had the Para- medics at Station 1, in Station 2 who we used as floaters. - 47 - CITY COUNCIL Grievance Hearing, December 16, 1974 Page Forty-eight So, we are still going by the same manning standards. MAYOR SHEARER: Fine. There was a reference also,I think as to safety and so forth. Apparently, as a matter of practice or a matter of policy of the City, at three Stations • on a routine basis we only have three man companies. MR. SWARTZs Right. MAYOR SHEARER: So, there has been a decision made somewhere that that is adequate to provide safety and so forth. MR. SWARTZ: Right. MAYOR SHEARER: It isn't necessary then to have a four man company at all stations? MR. SWARTZ: Not under our present standards. MAYOR SHEARER, Why do we have a four man company then at two stations? MR. SWARTZ: We have the four men because we assign them at the Headquarters Station and Station 1 because that is the highest value district and if we can use them, if they are there, we use them. But, if we need them as floaters, we will send them to other stations. MAYOR SHEARER: At any time would we operate with less than a three man company? MR. SWARTZ: No. MAYOR SHEARER: What would we do, if say, three men called in? MR. SWARTZ: We'd call off duty personnel, and man rank for rank. MAYOR SHEARER: I may be going over ground that has been tread before, but I think it is important to me, at least. Say a Captain calls in. Would it be the practice; and he is the third man - the other two, regardless of where they are, they have been taken care of, now you've got no more floaters, would it be the practice today to move an Engineer to Captain, and a Fireman to Engineer, and then call in a Fireman? MR. SWARTZ: No, we call in Captains. MAYOR SHEARER: If you had no floaters, if you had no call up capabilities, you would call in a Captain? MR. SWARTZ: Right. MAYOR SHEARER: You wouldn't go a round the corner and raise everybody up and call in the lower paid man to save money? MR. SWARTZ: No. MAYOR SHEARER: You would do that though if there were no - if it were possible, if there were no Captains available to be called? S CITY COUNCIL Grievance Hearin December 16, 1974 Page Forty-nine MR. SWARTZ: No Captains or qualified people to move up into that position. MAYOR SHEARER: I have no more auestions. COUNCILMAN CHAPPELL: We talked about qualified personnel. • Do we have an on going training program that continues to up- grade the people. Say, after a period of time, a Fireman would normally be trained higher than a Fireman if he has been here 4 or 5 years, or something like that? MR. SWARTZ: The Captain's job specification states that a Captain, or an Engineers Exam will be held once a year with a Qualified Acting Engineers Exam at the same time. In our Department, if a person passes the Qualified Acting Engineers Exam 3 years in a row, and although he is unable to make Engineer because there isn't that amount of vacancies open, and, if he can meet the requirements, educational and time requirements for the Captain's position, he can go direct to Captain from Fireman, to the Captain's position as long as he has had the Qualified Acting Engineers test 3 years in a row. COUNCILMAN MILLER: In this process of training andtakin` the test, is he also getting it from a practical standpoint where he is out doing it; is he actually doing it physically? MR. SWARTZ: On the move up they are actually receiving experience in the acting positions, as the Acting Captains an.d as the Acting Engineers. The Qualified Acting Engineer would move up into the acting position to fill a vacancy on a move up, if necessary. COUNCILMAN BROWNE: I think I can ask the question I wanted to direct before. Mr. Holle made a statement that Engineer for Engineer, he may not be fully qualified in certain operations within the Department. I can probably understand specifically on the Snorkle operation, and Engineer would have to be definitely trained on the operation of the voice section of that vehicle. Is this one of the requirements in the standards of becoming an Engineer; that they become proficient in every area of concern, even the Snorkle? MR. SWARTZ: The concern of the Snorkle here is that we don't assign an inexperienced man to operate it. It is quite complex. We assign our people - we rotate our people once a year. And, if we have a person that makes Engineer, we don't assign him to the Snorkle. We put an experienced-'ngineer on the Snorkle, and even an experienced Engineer can find it strange at the start of the year because he is coming; from anothef- str:.tir)n, and althouEh he has been with us for 5 or 6 years, or 5'years maybe before he rotated to this station to be put on the Snorkle. - 49 - CITY COUNCIL December 16, 1974 Grievance Hearin ti Page Fifty It is soing to be strange to him. And, he is going to have to have a certain amount of training and review to operate that unit efficiently. But, if.I have an Engineer who is sick who operates the Snorkle, and I have an experienced Engineer • on the Pumper; the man that I bring in, if he is a young Engineer, I assi{m him to the Pumper and put the experienced Engineer on the Snorkle. COUNCILMAN BROWNE: Thank you. I just wanted to evaluate and compare the training. I have no further questions. COUNCILMAN TICE: What common practice is it in other Fire Departments, lets say the City of Los Angeles, the County, Arcadia, and so forth, to call in persons - to call in rank for rank? Do you have any feel for that? MR. SWARTZ: No, we have not made a survey of what other Departments are doing. The only thing is, on this rank for rank now, this allows people to obtain experience; moving up they are obtaining experience. So, if we go strictly on rank for rank, the person won't be able to get experience on the unit until after he makes his promotion. COUNCILMAN BROWNE: In your determination, in provision 2.3 it says "within the same rank", how do you qualify that interpre- tation? MR. SWARTZ: Well, we've interpreted the same way that we've been doing it. By moving people up and assigning them that rank, those that qualify, say as an Engineer. Now, the technicality, if there is a technicality, I don't know, but the way that we've interpreted it is the way we have been doing it. COUNCILMAN BROWNE: It has been the practice for many years? MR. SWARTZ: Right. CLOSING STATEMENT BY MR. COUNTER: Well, I think I said it all in my opening statement, but the testimony of these two witnesses, I think, nails the door shut, frankly. It is quite clear what has happened with the - the move up procedure is not in any way changed by the language in 2.3. It was never intended to; it is only an afterthought, I would sur- mise,on the part of the Un'on and the people that they represent to try to make this argume t. But it was certainly never intended during the negotiations th t lead to the drafting of that language. It was the City's own Tang age that put this provision into the agreement; and, the testim ny of Mr. Eliot was quite clear on that point. - 50 - CITY COUNCIL Grievance Hearin As think that in so far as the ' concerned, he had no part an( of that lan�uag e in its Tina: 2.3. So, his interpretation, evidence in construing this I December 16, 1974 Page Fifty-one o the testimony of Mr. Duvall, I nterpretation of the language is played no part in the negotiation wordage that came out into Section while interesting, is not at all rovision. The evidence you should consider, however, is the clear practice of the Department to follow this move up procedure all through the life of the 1973-74 Memorandum and up to the present date under the 1974-75 Memorandum. Cou juggler vein when he asked t language mean in sofar as th As opposed to the move up pr of the language was that whe Department would make a good evidence to the contrary, a rank for rank basis. Where you fall back on the acting So, Department's present practic two Memorandum of Understand and it is quite clear that t really analyze the testimony by the Department. Gilman Tice, I think, really hit the e question: "Well, what does this call in procedure is concerned?" cedure. Quite clearly the intent you have a call in situation, the faith effort, and they have, no ood faith effort to call in on a his was not possible, then again ank situation. the language is quite clear. The , and throughout the life of these ng, is consistent to the language e intent of both parties, if you is consistent with the interpreation I respectfully submit that the only real decision for the Council, on the basis of the facts presented, and on the basis of the clea language used, particularly the proviso of 2.3, and construi g that language in conjunction with Section 2.2, that the grievance should be denied. Thank you. MAYOR SHEARER: Gen That is the clock; the clock I apologize for all parties time when perhaps it is not know how long our deliberati Of' course, the interviews th want to continue and make ou. Wakefield's presence is abso 13ut, we will not close the H gentlemen? (The Council indicated that present for their deliberati when all members of the Coun, December 23, 1974. All part. date.) lemen, we have a bit of a problem. is always a problem, I guess. oncerned; we scheduled this at a onvenient. I am wondering - I don't n will take. We only have 30 minutoS. t we have can be delayed, if we decision. I don't know if Mr. ute required during our deliberation. aring. What is your pleasure, hey would prefer to have Mr. Wakefield n, and determined that the next date it could be present was 4:30 P.D', on es concerned agreed on this time and Mr. Wakefield instructed the Council, and all parties concerned regarding conversation or discussion of this matter prior to the continuation of the Hearing. ------------------------------------------------------------------- ADJOURMENT: Motion made by Councilman Browne, seconded by Councilman Chappell to adjourn the meeting at 7:00 P.M. until 7:30 P.M. or, December 16, 1974. Motion carried. 51 -