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12-23-1974 - Special 2 Meeting - MinutesMINUTES OF ADJOURNEDyREGUL'AR`MEETING OF THE -CITY -COUNCIL CITY OF WEST-COVINA, CALIFORNIA DECEMBER 23, 1974 A special meeting of the City Council called to order at 4:35 P.M. in the West Covina Council Chambers by Mayor Chester Shearer. ROLL CALL Present: Mayor Shearere Councilmen: Browne, Miller; '.Chappe'll: - ,T�pe• Others Present: George Aiassa, City Manager Lela Preston, City Clerk George Wakefield, City Attorney Leonard Eliot, Controller Kevin Northcraft, Administrative Asst.- Janet Williams, Administrative Analyst Calvin Wetherbee, Chief, Fire Department Harold Swartz, Batt. Chief, Fire Department J. Nicholas Counter III, Attorney Richard J. Smith, Business Representative, Ca. Teamsters Public Employees Union Charles Bahn, President, Firemens Assoc. Michael Holle, Fire Department Larry Kliewer, Fire Department Mayor Shearer: This is a continuation of a Grievance Hearing begun last Monday, December 16, 1974. Due to the length of the Hearing, and due to some conflicts the Council was unable to deliberate and reach a decision. The purpose 'of the meeting today is for Council discussion and eventually, I hope, a decision in the matter. Councilman Browne; Mr. Mayor, after weighing the testimony of those who appeared at the last meeting, I feel that there is kind of a void in understanding in so far as the Article 2.3 is concerned in the Agreement. In as much as the Memorandum of Understanding for the year of 1974-75 contained the same wording in Article 2.3 as that of the same Memorandum and Article in the year of 1973- 74 and that the practice of replacement assignment procedure was applied in basically the same manner in 1973-74, it makes me rather concerned now that we are faced with a grievance. Whether or not the Meet and Confer sessions that both parties sat in were consummated with a clear understanding of agreement between both parties, this,I think, is probably where the problem lies. I would, in my opinion, state that Article 2.3 is, and has been;for the past two or three years, rather ambiguous and can be�a continued source of problem for both parties. The words "where possible," however interpreted, will be the source of conflict. It would seem that any intended agreement or understanding relating to Article 2.3 should be more specifically spelled out. In essence, wherever a call back or a move"up procedure is implemented, both parties should be in agreement -of' -the method of implementation, of whatever way you are going to operate it. - 1 - CITY COUNCIL Grievance Hearing December 23, 1974 Page Two Testimony on the part of both parties indicate that assumptions of blame can be directed to the basics of the Meet and Confer. If the Association had spelled out the desired changes in Article 2.3, and that these changes were not made, I would think it would be their reponsibility • at the time it went before the group for ratification to call for the correction. It was also stated that there was a verbal agreement relative to the implementation "wherever possible". A verbal understanding, in my own consensus, would not serve the purpose. It was also indicated by the Employee Representative that the method of move up was allowed from April through September of 1974, and I think this was based upon obtaining the Paramedics Program, and this was by verbal agree- ment by the Representative made to Management and apparently was done without ratification of the general membership. Whether this was -an understanding by the Representative and the member- ship, I did not get from the testimony. And, under this assump- tion, I would say that perhaps Management took the attitude that the understanding "where possible" would be a continuing thing as was written in the prior years. At the time the membership ratified the Understanding, I would think that they would have called for the removal of these two words, "where possible",.' Now, perhaps there was a misunderstanding in the interpretation of it, and under this I would say that it was an error of agreement on the part of either party. I • feel that negotiation between City Management and Employees should always be conducted in good faith and total understanding with authorness in the written agreement and adherence by both parties to that end. My recommendation would be to both parties to accept no fault at this time, and arrange to correct the ambiguities of Article 2.3. This can only be done by meeting in good faith and work out a desired procedure, agreeable to both parties, clearly spelling out the call back procedure before a move up is implemented. I don't feel that this should be too difficult to accomplish, especially if both parties are intent not to have reoccurren.des of conflicts of understanding in the future. : At this time I would be fully against allowing the grievance stated on the reasons I have just given. However, I would mplo-? both parties either to sit down immedi- ately, or perhaps when the next Meet.and Confer comes up, and correct this item number 2.3. That is the way I feel, Mr. Mayor. Councilman Tice: In looking at this from a little different standpoint, looking at it from a neutral third party, which,in essence, the Council plays the position of - the Grievance Committee. The way the clause was written out pretty well substantiates, in my feeling, • that when they say "call back by the same rank" they mean call back by the same rank. I don't understand why this wasn't brought up in the 1973 Agreement; why nothing was done about interpreting this thing. If I wear my Management hat, and not a third party hat., I probably would rule against the grievance. But, looking at the way I interpret the wording and the way other people look at the wording too, I find it rather hard to get any- thing else out of that clause other than call back by the same rank. - 2 - CITY COUNCIL December 23, 1974 Grievance Hearing Page Three °I do have some concerns about the words "where possible". I think that is the thing that more or less bothers me. I think that has to be clarified, and I would propose that maybe some type of a rule of 3, or something like that be used, where it is practical. Whereas, if we call back an', Engineer for an Engineer, we don't - or, we at least make an attempt to call three. If we can't reach three,individuals, then the one with the next highest rank would be called back. You could go on indefinitely on this type of thing. I also have another suggestion, too. Kind of a rule of one of five which would be used for training purposes and also apply to the rule of three that every fifth call back would give the opportunity for somebody of a lower rank to act in an acting position for training. Councilman Chappell: How did you develop that 3 and 5 figure? Councilman Tices Oh, it was just an arbitrary figure on my part. I can't read it any other way, so that is my feeling on it. It is pretty well spelled out. I am just surprised that it hasn't come up before. Councilman Miller: In looking over Section 2.3, trying to be as realistic as possible, it does present itself to a little ambiguous wording. I would encourage in the next Meet and Confer that some of these ambiguous situations that have arisen now be • worked out in a little more detail. Having gone through this and listening to the testimonies, it is one of those things ,that if you look at it from both sides and then as a third party, I find that at this time, personally, that the Fire Department Management,has in its practice, has and is complying with this section. Basically, again, I try to encourage that the ambiguous type of wording be reworded or something to this effect in the future because Management has responsibilities,too, when they work within a budget, they have to do the best they can; and, also to make sure the people are qualified. So, when you look at qualifications, budget and management and then procedures there shouldn't be any question. , So,I would encourage as you are doing now, and see if we can't get some clarifications. Councilman Chappell: The problem here is that we have two honorable bodies determining the loosely written body';of'a document. I think that we will,awithout a doubt, be working on this in our next negotia- tion period. I don't see any other way of doing it. I was here and listened to all of"the . testimony, and read over a little bit of the minutes. I wish that we had had them a little earlier because I think there were some areas that needed to be reviewed to make a decision a week later. But, last week I was ready to vote,if you called for the question, to uphold our Fire Department and Staff. The fact that the grievance would be denied. I haven't changed my opinion. - 3 - CITY COUNCIL Grievance Hearing December 23► 1974 Page. Four We heard some testimony that bothered me a little bit about non -qualified people were being called up to fill the vacancies of certain ranks, which, I hope isn't true. I hope it was more of a slip of the tongue than a fact. In reading over the language of 2.3, I • could see where our Chief is adhering to this portion of the contract, so to speak, and would therefore say that I would deny the grievance at this time. Mayor Shearers Not to belabor the issue too much longer, I think I hear the consensus of the Council is to deny the grievance. That is my position, and I will attempt to state why. I would agree with my colleagues that Section 2.3 is very poorly written, I think the position of both parties to the grievance can probably be argued with the words of the grievance and, perhaps, a good job done on both sides. That in itself shows that the term - or the section, is not a food section if it leaves it open for that much difference of interpretation. I think what it boils down to, in my mind, is the question of intent. What was the intent? I am sure there is no question of the intent of the Fire Fighters Association when they signed it; from their testimony that is quite obvious. I think from the testimony that was presented by Harold Swartz and Leonard Eliot, what the intent was of Management when they recommended it to Council, as did Mr. Counter, that we ratify it. • So, we have to look at what the intent of the Council was.when we approved it. I am going to have to disagree with Councilman Tice somewhat. The City Council -.cannot be a neutral third party in this because we were involved. We approved we ratified the Memorandum of Understanding. Three of us at least, on the Council at that time, had certain things presented to us, certain dis- cussions. So, we cannot sit as a neutral third party because we were involved. I think the intent of the Council in certain things, even of management, which there is a pretty close relation- ship, is the rejection of constant manning. I think Mr. Eliot testified, I believe it was, that that concept was rejected. I realize that there is some disagreement as to what constitutes constant manning, but one of the witnesses for the Union, Mr. Duvall, in answer to my question indicated, I believe, that at least this interpretation by the Union was a form of constant manning, which had been openly rejected during the negotiating stages. I think that the fact that the budget that was approved did not contain sufficient funds to financially support the interpretation of the Union is another indication of what the intent of the Council was. This was recognized by then Acting Chief Short in a meeting testified occurred, which,of course,was not with the approval of the Council. I don't think any of us knew it, I'm not sure that anyone other than Chief • Short was aware of this meeting. The most recent thing that, to me, shows the intent of the Council and the intent of Management was when we discussed the Apprentice Firemen elevation to regular Firemen - 4 - CITY COUNCIL Grievance ieari�g December 23, 1974 Page Five • 0 i status. At that time, I believe it was Chief Short used the term of "floaters"in reference to the two extra men that would be available to be utilized to avoid overtime. This was made very clear to the Council that what the purpose - one of the purposes of elevating the Apprentice Firemen to full Firemen status, and that was just this very thing that we are discussing here this evening. That Council approved that, and, I think this adds validity to what our intent was. I am not here to argue what those words might mean to someone else, but what our intent was. We first approved the Memorandum of Understanding for 1973-74, and we then approved basically the same wording in 74-75. There were significant differences. One of which was the acting pay. Under the current Memorandum it now,starts with the first shift rather than with the third shift. That in itself is quite a major change between the two Memorandums. Obviously, I think this item will become a major item in the negotiations that are going to be starting in just a very few months. the grievance. I will vote, if we have a motion, to deny Councilman Tices I have looked over a number of different decisions over the years of arbitrators in cases similar to this. I feel that if it went to Arbitration down there they would rule against the City in the interpretation of this thing, this clause. Mayor Shearer: Yes, but the point is, Councilman Tice, we are not an Arbitration Board. We are sitting here... Councilman Tice: I would suggest that the Association use the Personnel Board, possibly, the next time,as their final appeal. Mayor Shearers I think the Memorandum of Understanding gives that... Councilman Tice: You have the background of the Memorandum of Understanding, true; I don't. What the intent is. I'm looking at it strictly on words. You gentlemen who have served before have that advantage of having that background. That is all I have to say. Mr. Wakefield: Mr. Mayor, may I suggest a motion, if it meets with your pleasure? As I sense the discussion, the action of the City Council that the grievance be denied and that the City Council finds that Section 2.3 of the 1974-75 Memorandum of Understanding entered into between the City and the Firemens Association is ambiguous and should be clarified in the 1975-76 Meet and Confer sessions. The City Council also finds that Section 2.3 of the Memorandum of Understanding, as it now exists, does not prevent the Department from making temporary assignments of fully qualified employees to a higher rank on an acting basis to fill the position of an employee temporarily absent from duty. -5- 0 CITY COUNCIL Grievance Hearin December 23, 1974 Page Six Motion made by Councilman Chappell, — seconded by Councilman Browne that the grievance be denied and that the City Council finds that Section 2.3 'of the 1974-75 Memorandum of Understanding entered into between the City and the Firemens Association is ambiguous and should be clarified in the 1975-76 Meet an&,.Conferisessions. The City Council also finds that Section 2.3 of the Memorandum of Understanding, as it'now exists, does not prevent the Department from making temporary assignments of fully qualified employees to a higher rank on an acting basis to fill the position of an employee temporarily absent from duty. Motion carried on roll call vote as follows AYES: Browne, Miller, Chappell, Shearer NOES: Tice ABSENTs None ADJOURNMENT Motion made by Councilman Chappell, seconded by Councilman Browne to adjourn the meeting at 5t00 P.M. until 7:30 P.M. December23, 1974, regular meeting of the City Council. Motion carried. WIE