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HomeMy WebLinkAbout12, IBEW 1245 Grievance Letter of ReferralAgenda Item #12 To: From: Date: Subject: Board of Directors Brian Wright May 20, 2020 Consideration of Letter of Referral Submitted by IBEW 1245 Regarding MOU Grievance ACTION 1. WHY THIS MATTER IS BEFORE THE BOARD Step 3 of Section 14.4, Grievance Procedure Steps, of Title 14, Grievance Procedure of the Memorandum of Understanding (MOU) between the District and the International Brotherhood of Electrical Workers (IBEW) Local 1245 includes provisions for the Board's written response to a grievance submitted by an employee or an employee organization official if desired by the employee. 2. HISTORY The majority of the District's operations, maintenance and administrative staff (non- exempt employees) is a bargaining unit that is represented by the IBEW Local 1245. The District and IBEW 1245 have maintained an MOU since May 1, 1967. The previous MOU with IBEW Local 1245 became effective on January 1, 2016 and expired on December 31, 2019. In November and December of 2019, the District's labor negotiating team met with IBEW business representatives and the Local 1245 negotiating committee (District bargaining unit employees) to negotiate the terms of the new MOU. On December 12, 2019 the District and IBEW arrived at a tentative agreement on all proposed modifications, pending ratification by majority vote from IBEW Local 1245 membership and approval by the Board. In the interest of honoring the tentative agreement, all of the new provisions within the MOU were implemented and made effective January 1, 2020. On February 5, 2020, IBEW 1245 submitted a grievance to the District on the grounds that the District failed to uphold the terms of Title 19, Employee Benefit Program. The grievance reveals a material difference in interpretation by the District and IBEW Local 1245 as to the applicability of the MOU to previously retired employees of the District. District staff holds the position that during negotiations, compensation and benefits are provisions that were negotiated on behalf of current employees only. IBEW 1245 represents the bargaining unit, which is comprised of current employees. It does not include former employees, including those who have retired from the District. Therefore, District staff had no expectation or reasonable basis upon which to believe that in negotiating with IBEW 1245 that it was negotiating compensation and benefits for anyone other than those persons who are members of the bargaining unit. In other words, there was no expectation or basis upon which to believe that it was bargaining for benefits for anyone who is not a member of the bargaining unit, i.e. - retirees.. At no point during the negotiations did the IBEW 1245, the District's negotiating team or the Board of Directors indicate or suggest that any of the negotiations were being conducted on behalf of non-bargaining unit or previous employees. IBEW 1245's assertion, as stated in the attached Letter of Referral, that it was the parties' mutual intent at the bargaining table is not supported by either parties' documentation. In the context of the grievance submitted by IBEW 1245 on April 14th, this includes increases in the District's monthly contribution to post retirement benefits. This holds true with other negotiated provisions such as wage increases, increases in employee monthly contributions to group medical insurance plans and other economic benefits. On February 20, 2020, the District and IBEW 1245 held an informal meeting to discuss the difference in interpretation of Title 19, and its potential impact on the timely approval of the MOU. Neither party conceded its position in terms of the applicability of newly negotiated benefits to previously retired employees. Subsequent to this meeting, a second informal meeting was held between the District and IBEW 1245 with the intent of finding resolution to the disputed item and proceed with the timely approval of the new MOU. In this meeting both parties agreed that advisory arbitration, as provided in Title 14 of the MOU, was the appropriate means for seeking resolution. The parties entered into a "Side Letter Agreement" whereby they agreed to resolve their difference without further meet and confer and by allowing the Board to adopt the proposed MOU without either party waiving its respective position on the disputed issue. The Side Letter Agreement has been included with this staff report as Attachment 2. Following final review, IBEW ratified the proposed MOU on February 25, 2020. At the March 18, 2020 meeting, the Board approved the MOU and acknowledged the Side Letter Agreement. 3. NEW INFORMATION On April 14, 2020 the District received a second grievance from IBEW 1245 that was substantially the same as the grievance received on February 5, 2020. The Grievance substantially the same as the grievance received on February 5, 2020. The Grievance received from IBEW 1245 on April 14, 2020 has been included with this Staff Report as Attachment 1. In accordance with Step 2 of the Grievance Procedures outlined in Title 14 of the MOU, the District responded to IBEW 1245 on April 15, 2020, stating that the District's position on the disputed item had not changed and that subsequent to the initial grievance submitted on February 5, 2020, both parties had agreed to find resolution through advisory arbitration. On May 5, 2020, in accordance with Step 3 of the Grievance Procedures outlined in Title 14 of the MOU, IBEW 1245 submitted to the Board a Letter of Referral for consideration of the grievance submitted on April 14, 2020. The Letter of Referral has been included with this Staff Report as Attachment 2. Not only was the Letter of Referral submitted in contravention of the Side Letter Agreement, it was submitted the day before the May 6, 2020 Board meeting and after the agenda for the meeting had been posted. Therefore, the Board would not have been able to hear and decide on the Letter of Referral within 10 days as required by the MOU. Regardless of the fact that it was submitted in contravention of the Side Letter Agreement, the District informed IBEW 1245 that if it wanted the Board to consider the Referral Letter, it would need to waive the 10-day period in writing. IBEW 1245 waived the 10-day period. A copy of the District's letter and IBEW 1245's response are included with this Staff Report as Attachments 3 and 4, respectively. It should be noted that there are multiple inaccuracies within the Letter of Referral, most significantly: In paragraph 5 of the letter, IBEW 1245 Business Representative, Mike Venturino indicates that during an informal meeting held on February 20, 2020 "Mr. Holley conveyed in confidence that the cancellation of payment to current retirees was due to outside pressure from unrepresented retirees." This is entirely inaccurate. During the meeting, IBEW 1245 was informed that the previous retirees were never intended to receive the increased post retirement benefit, that Staff had mistakenly distributed the increased contributions to existing retirees in January 2020, and once the mistake was identified, the contribution amounts were corrected. Furthermore, IBEW 1245 was informed that former unrepresented retirees were in fact collaborating with former union retirees to protest the action jointly. The options under consideration by the Board include the following: 1.) Reject the grievance submitted by IBEW 1245 on April 14, 2020, at which point IBEW 1245 would have the option, in accordance with Step 4 of the Grievance Procedures outlined in Title 14 of the MOU, to submit the grievance to non-binding advisory arbitration within twenty (20) days. The arbitrator shall then provide a written recommendation to the Board. The Board would then have ten (10) days to provide a final written decision; or 2.) Accept the grievance submitted by IBEW 1245 as valid, thereby affirming the position that IBEW 1245 represents past employees and direct staff to increase the District's post retirement medical benefit contributions for existing employees, effective January 1, 2020. In making a determination as to how to proceed in this matter, the Board may wish to consider some of the following contributing factors: Generally speaking, labor negotiations between the District and the employee's collective bargaining unit are conducted under the pretext that newly agreed upon provisions are intended for the benefit of retaining current employees and the recruitment of future employees. The negotiation process includes compromises in providing monetary increases to some provisions within the compensation and benefits package as well as cost containment or employee contributions to other provisions within the package. Past employees are not represented at the table and therefore are not subject to either side of the compromises agreed upon, whether those are increases in provisions or additional costs to the employees. Employees who retire from the District are subject to the compensation and benefits package, and all other provisions available and which had been agreed upon and in place at the time of retirement. Subsequent negotiations, agreements and MOUs do not apply to individuals not employed by the District or in this case who are no longer members of the collective bargaining unit at the time of the agreement unless otherwise explicitly agreed upon. Former employees and retirees are not members of IBEW 1245 and do not pay dues, so it is curious as to why IBEW 1245 takes the position that it bargained on behalf of them. Furthermore, IBEW has not clarified as to whether its assertion of mutual intent at the bargaining table is applicable solely to previous retirees who retired as members of the collective bargaining unit, past employees who at one point in their tenure with the District served as a member of the collective bargaining unit but retired as an unrepresented employee, or all previous retirees regardless of represented status. 4. FISCAL IMPACT The direct fiscal impact associated with this item is not yet known, as it is dependent upon the direction provided by the Board. The following potential fiscal impacts have been outlined for consideration: If the grievance is rejected there will be no direct fiscal impact associated with this item. The District will be subject to equal share with the collective bargaining unit for the cost of advisory arbitration should IBEW 1245 choose to pursue that option. The actual cost of arbitration is not known at this time. If the grievance is accepted and the Board determines it appropriate to apply the negotiated increases in the District's contributions to post retirement medical benefits to all past retirees, there will be an estimated annual increase in the District's Other Post Employment Benefits (OPEB) of approximately $91,000/year. This annual cost estimate does not include any additional associated administrative costs, and is dependent upon the number of retirees in the program and eligible contributions each year. Title 14 of the MOU, Grievance Procedures stipulates that an employee, and/or an employee organization official if desired by the employee, shall refer the issue (grievance) in witting. The District contends that both the original grievance received on February 5, 2020, and the second grievance received on April 14, 2020 have been submitted by IBEW 1245 on behalf of ex-employees, not current employees, who are no longer members of the collective bargaining unit, and therefore not covered by the current MOU. In other words, the Union had no standing to submit these grievances. During the informal meeting held between the District's labor negotiating team and IBEW 1245 representatives, Staff indicated that one of the contributing factors of the dispute is whether IBEW 1245 had standing to submit the grievance, as it has been submitted on behalf of a group IBEW 1245 does not represent. Moving directly to advisory arbitration was recommended during this meeting to determine the validity of the grievance and avoid re-opening negotiations which would have financial implications to represented employees. During the negotiations, the District's negotiating team received parameters from the Board to include modest increases in the District's contribution to employees monthly post retirement medical benefits in exchange for cost containment measures in the form of monthly employee contributions to group medical insurance plans. Neither of these provisions were intended to be applied to previously retired employees. The opptions and considerations presented in this Staff Report for the Board's consideration have been reviewed and concurred with by District Counsel as well as the District's outside labor counsel and lead labor negotiator, Joe Wiley. Brian Wright Michael D. Holley Water Utility Director/Assistant GM General Manager in the program and eligible contributions each year. 5. RECOMMENDATION Staff recommendation is to reject the grievance submitted by IBEW 1245 on April 14, 2020.