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HomeMy WebLinkAbout2003/05/28 - Agenda Packet - Spec (Griev - Berry) AGENDA RANCHO CUCAMONGA CITY COUNCIL FIRE PROTECTION DISTRICT SPECIAL MEETING Wednesday, May 28, 2003 ~ 5:00 p.m. Rancho Cucamonga City Hall ~ Council Chambers 10500 Civic Center Drive + Rancho Cucamonga, CA 91730-3801 A. CALL TO ORDER 1. Pledge of Allegiance 2. Roll Call: Alexander__, Gutierrez , Howdyshell , Kurth , Williams B. COMMUNICATIONS FROM THE PUBLIC This is the time and place for the general public to address the City Council and the Fire Protection District Board. State law prohibits the Council and the Board form addressing any issue not previously included on the agenda. The Council and the Board may receive testimony and set the matter for a subsequent meeting. Comments are to be limited to five minutes per individual. C. CONDUCT OF CLOSED SESSION CLOSED SESSION FOR THE CITY COUNCIL AND THE FIRE BOARD TO RECESS UNTIL THE CONCLUSION OF THE FIRE BOARD GRIEVANCE HEARING AND WILL BE HELD IN THE TAPIA ROOM. 1. LABOR NEGOTIATIONS PER GOVERNMENT CODE SECTION 54957.6 TO GIVE GEORGE RIVERA, ADMINISTRATIVE SERVICES MANAGER, PAMELA EASTER, DEPUTY CITY MANAGER, AND LARRY TEMPLE, ADMINISTRATIVE SERVICES DIRECTOR, DIRECTION IN REGARDS TO THE MEET AND CONFER PROCESS - FIRE AND CITY D. FIRE BOARD ITEM(S) OF BUSINESS '1. GRIEVANCE HEARING OF DAVE BERRY, FIRE CAPTAIN~ REGARDING INTERPRETATION OF EDUCATION REIMBURSEMENT PROVISION IN THE MOll E. ADJOURNMENT I, Debra J. Adams, City Clerk of the City of Rancho Cucamonga, hereby certify that a true, accurate copy of the foregoing agenda was posted on May 22, 2003, per Government Code 54954.2 at 10500 Civic Center Drive, Rancho Cucamonga, California. SUGGESTED PROCEDURES FOR GRIEVANCE HEARING 1. At the commencement of each session, the Chairperson should announce the nature of the matter, to wit, "This is a heating on a grievance filed by Fire Capta'm David Berry asserting a violation of the M.O.U. between the Rancho Cucamonga Fire Protection District and the Rancho Cucamonga Professional Firefighters concerning tuition reimbursement." 2. The hearing will be open to the public pursuant to the provisions of the Ralph M. Brown Act, Government Code Section 54900, et seq. 3. At each session of the hearing, the Chairperson should recite into the record at the commencement of the hearing, the presence of the employee who is asserting the grievance, the employee's legal counsel by name (if the employee is represented), all Board members, the legal counsel for the district Staff ("staff' hereinafter) and legal counsel to the Board. 4. The hearing itself: (a) The burden of proof, both as to the existence of the ground(s) for the grievance made, the timelines of this appeal, and the propriety of the remedy imposed, is on the employee. The employee must present a preponderance of evidence in order to sustain his position. (b) The employee's counsel may make an opening statement, followed by an opening statement by the staff counsel. However, the staff counsel may reserve the making of that opening statement until the employee closes its presentation of evidence. (c) The Chairperson should inquire if the staffs counsel and the employee's counsel have reached any stipulations on the admission of any writings or other documentary into evidence. If so, one of the counsels should read into the record the number or letter assigned 11232\0050\719425.1 to each exhibit, and the exhibit's title, author, addressee (if applicable) and number of pages. Copies of the exhibits should also be provided to the Board members and the Board's counsel. (d) The Chairperson should inquire if the staff's counsel and the employee's counsel have reached any stipulations as to any of the facts relating to the appeal. If so, one of the counsels should read each fact into the record. The Chair may request that the stipulated facts be submitted in written form for use by the Board during the hearing. (e) The employee shall first present his evidentiary case, the staff next, then any rebuttal by the employee, any counter-rebuttal by the staff, etc. (f) The procedure for questioning the witnesses should be as follows: (i) direct examination by party calling the witness; (ii) cross-examination by other party; (iii) re- direct examination by the party calling the witness; (iv) re-cross-examination by other party, etc. In addition, members of the Board shall have the opportunity to question any witness. (g) All witnesses shall be sworn. In that regard, a form of oath to be utilized is attached to this document for the information of the Board and for the use by the Chairperson of the Board. (h) Formal rules of evidence will not be rigidly adhered to, but it will be expected generally that such rules will be complied with as nearly as possible. (i) The Board's counsel will rule on objections to evidence, and procedural matters. Unless a contrary motion is made by a Board member, seconded and carded by a majority of the Board, the ruling shall stand. (j) At the conclusion of the presentation of the evidence by the counsel for the employee and counsel for the staff, closing statements of counsel may occur. Counsel for the 11232\0050\719425.1 employee has the opportunity to present the first closing statement. Counsel for the staffmay then present a final statement. Counsel for the employee may then present a final additional closing statement. This procedure is consistent with the normal court trial procedure for allowing the party bearing the burden of proof to make the first and last closing statement. (k) After all evidence is presented, and the closing statements are concluded, the Board will deliberate in public. (1) It should be noted for the sake of the Board as well as for counsel that the law requires that specific factual findings be made by the Board in order to support the Board's conclusions that grounds for grievance did or did not occur; and further, that the type and extent of any remedy imposed by the Board is proper under the particular circumstances. Accordingly, it is recommended that the Board request that counsel for the City staff, and counsel for the employee, prepare and submit to the Board, upon the close of arguments, proposed specific findings and fact and more general conclusionary findings as to the existence of a ground for grievance, and as to the remedy asked to be imposed. The Board may the be able to utilize such documents in deliberating. The Board will also receive more specific instructions as to findings which the Board must make by the Board's counsel at the close of the hearing. This matter may be discussed further amongst all of the counsels for the parties involved in the proceeding, with the goal of expediting the Board's deliberations. (m) At the conclusion of its deliberations, the Board will announce its decision, and will direct the Board's counsel to prepare a formal resolution which will contain the specific findings of fact and conclusions. Action of the Board will not be final until the resolution is adopted. 11232\0050\719425.1 FORM OF OATH "Do you solemnly swear (or affirm) that the evidence you shall give in this matter, pending before the Personnel Board of the City'of Rancho shall be the truth, the Cucamonga whole truth, and nothing but the truth?" 11232\0050\719425.1 ~la$ 23 03 ]0:36a [415) 274-8770 P-:~ In the Matter of Arbitration Between, Rancho Cucamonga Firefighters, Lo~] 2274, Union, Arbitrator's and Opinion and Awaxd CSMCS Case No. 92 3 753 Rancho Cucamonga Fire Protection District Employer. (Employee Compensation grievance) Arbitrator: Michael Prihar, Esq. APPEARANCES For the Union: For the Employer: Duane W. Reno Steve A. Filarsky Attorney at Law Attorney at Law Davis, Reno & Courtney Filarsky & Watt 90 New Montgomery St., Ste. 909 1441 19th Street San Francisco, CA 94105 Manhattan Beach, CA 90266 The Rancho Cucamonga Firefighters, Local 2274 (Union) and the Rancho Cucamonga Fire Protection District (District/Employer), with administrative assistance from the California State Mediation and Conciliation Service, selected the above named Arbitrator pursuant to the terms of their Memorandum of Understanding (MOlJ). (J. Ex. 5).1 A hearing was held on the matter on February 2, 1994, at the Employer's Civic Center in Rancho Cueamonga, California. The parties had the opportunity to examine and cross-examine witnesses under oath, introduce relevant evidence, and propound arguments in support of their respective positions. The evidentiary record was closed at the conclusion of the hearing but the hearing record remained open pending receipt of post- I Union, Employer and Joint Exhibits will be identified as ~U. Ex.,' 'E. Ex.' and 'J. Ex.,' respectively. ~a~ ~,~ U~ lU:3Sa {41~] ~74-8770 p.3 Firefi~hters. Local 2274 - ~.ho Cuenm~nga F.P.D. CSMCS Cas 92 3 753 Pa~e ~ of 12 hearing and reply briefs. These were subsequently received and the matter stood as submitted. BACKGROUND Prior to 1989 the City of Rancho Cucamonga (City) received fire protection services from the Foothill Fire Protection District. In 1989 the City created the Rancho Cueamonga Fire Protection District (District/Employer), an entity which in fact was governed by the Rancho Cucamonga City Council in that its Board of Directors consisted of the City Council. Prior to that the Union had negotiated an MOU with the Foothill District covering the period luly 1, 1988, through June 30, 1990. The newly created Rancho Cucamonga Fire Protection District took over the former Foothill District and the City agreed to honor the terms of the existing MOU between the Foothill District and the Union. The Employer and Union successfully negotiated their first MOU as of June, 1990, and its term ran from July 1, 1990, through June 30, 1991, Fiscal Year (FY) 1990/91. During the first negotiations with the District as the new Employer the District proposed and the parties subsequently agreed to a pay provision which based the Union members' compensation at a level 5% higher than the average of identified nine survey cities (hereinafter this will be referred to as average plus five). In view of this provision the fire fighters received, during the fiscal year (FY) 1990/91 an increase of 16%. According to the Employer's spekesperson for those negotiations the Foothill District had viewed the fire fighters compensation as a total package and as a result had allowed salaries to fall significantly below market levels while providing high benefits. Because of concern over political ramifications from granting such a raise as a lump sum increase the parties agreed to structure the payments so that 6% was paid as a cost of living increase and the balance was paid over three installments; 3% effective July 1, 1990; 5% effective January 1, 1991, and; 2% effective April 1, I991. ~a~ 23 03 ~0:37a (41~) 274-8770 The MOU for FY 1990/91 expired on lune 30, I991. The Union asserted that no subsequent MOU was agreed upon, despite their proposals and attempts to negotiate for a survey formula increase similar to that granted in the preceding MOU. Claiming a financial hardship and an inability to grant wage increases the parties never reached an agreement and the District's Board members adopted a resolution which called for no pay increase for the fire fighters. The Employer asserted that while there was no agreed upon MOU during this period, covering FY 1991192, the parties' relationship was governed by the MOU letters which covered the basic terms contained in the predecessor MOU. The Employer therefore argued that the Union's basis for a grievance regarding the issue of the District's duty to pay under the salary survey provision first arose during the period that would have been covered by the FY 1991192 agreement and that the grievance procedure present in the predecessor MOU provided the vehicle for filing such a grievance. At some point near the end of FY 91192 the Union focused its negotiating effort on getting an MOU for FY 1992193. These began in the Spring, 1992, but dragged in view of delays in the passing of a Slam budget. The District Board again passed a resolution similar to that for the prior FY stating that there would be no increases for the FY 1992/93. There was a change in the District's chief negotiator, the City's Administrative Service Director, when the old one left and a new one was hired near the end of 1992 to take his place. Some discussions continued, however, and Ultimately the chief officers of the Fire District drafted a new MOU which contained the same salary survey language as initially proposed and drafted by the Employer for the FY 1990/91 MOU. This MOU was discussed with the Union's president and was submitted by the chief officers to the City Council who later approved it on December 16, 1992. The term for this MOU was from December 17, 1992, through June 30, 1993. When the MOU was signed, aCcording to the Union, the parties had not agreed on the actual wage levels to be provided. According m the Union they continued discussions with the Employer following the effective date of this 14.30161 Ha~ 23 03 lO:3?a (415l 2?4-8??0 F' eft hte I 274 -' 'ho Cucamon~'a F.P.D. C~;MCS Ca~K, .92 3 753 Pace 4 of t? MOU in order to again reach aa agreement as to the structuring of the anticipated pay increase in light of the salary survey language. Only when the Employer finally informed it that there would be no increases given during the term of this MOU did it file the instant grievance which sought aa award mandating the payment of any increase that might be due in light of the salary survey language. The Union concluded that its efforts were at an impasse on May 6, 1993, and the subject grievance was then submitted as of May 12, 1993. The Employer charged that the Union was consistently told that there would be no sala~-y increases during the term of the FY 1992/93 MOU and therefore the May, I993, filing of the subject grievance giving rise to this arbitration was untimely. In addition, the Employer argued that even if the matter was deemed arbitrable, the suspect language did not in fact create a contractual obligation to compensate at the average plus five level. ISSLTES The following were the stipulated issues to be addressed by the Arbitrator: "1. Whether the subject grievance is timely, and therefore procedurally arbitrable? If so, 2. Whether Article 1, Section IB, of the MOU between the parties for the period from December 17, 1992, until June 30, 1993, mandates the District to provide compensation into the District's 5-step salary plan for the employees represented by the Union at the average plus five percent of the compensation which the cities of Fullerton, Ontario, Riverside, West Covina, Pomona, San Bernardino, Corona, Orange, and Upland provided on May 1, 1992, to those of their employees in employment classes comparable to those in the bargaining unit represented by Local 2274?' PERTINENT M.O.U. AND POLICY LANGUAGE ARTICLE H Section lB. Survey Cities: Now, therefore, be i~ resolved, Ihe Union and District agree as follows: 1. The District wishes to implement the philosophy of compen~tion ulilized for the Cily of Rancho Cucamonga employees; that being, compensation at Ihe average of Ihe identified survey cities plus $%. The cities area (sic) as follows: Firefi hter~ Loca] 2274 - ~ho Cucamonga F.P.D. C$MC$ Car~ 92 3 753 Pa~e 5 of 12 Fuller~on Ontario Riverside West Covina Pomona San Bemardino City Coro~ Or.ge Upland 2. The philosophy of COmpensation at the average of the identified survey cities plus 5% will be implemeated in the Ranch Cucamonga Fire Protection District's current 5 step plan (A- ~). May 1st of each year, a survey of the identified labor market cities wil[ be completed , reviewed by the Union and District, and used as the comparison basis for any negotiations regarding market equity adjustment and cost of living adjustment if adjustments are needed and not conditioned by a provision of an agreement b~hveen the Union and District. ARTICLE IV Section 5: Formal Grievance Procedure A. Step 1 1. The employee and/or his reprc.ncntative shall p~sent his grievance, ha writing and sigaed, to his immediate supervisor within fifteen (15') days of the date that cause for a grievance arises .... OPINION I. Arbitrability The threshold issue of arbitrability itself raised two initial questions pertaining to the period following the termination of the 1990/91 MOU up to the signing of the 1992/93 MOU: (1) Whether the Union had the right to grieve, and if necessary arbitrate, the issue it now ra/sed regarding the wage language after the 1990/91 MOU expired and, as it asserted, there was no successor MOU for the FY 1991/92, and if so; (2) Whether the failure to exercise that right precluded the Union, under the procedural terms of the existing MOU grievance language and the concept of estoppel by ]aches, from filing such a grievance when it did in May, 19937 The first question served to clarify the scope of the second, but in truth a negative answer to the second would preclude the need for an answer to the first. If it was concluded that the right to grieve existed during the FY 91/92, regardless of whether there did or did not exist an MOU during this period, and a failure to file the grievance did not render the grievance untimely and therefore not arbitrable, any Ma~ 23 03 t0:37a t415~ 274-8770 ~Loca12274 - ~hn Cuenmonl~a F.P.D. CSMCS Cm 92 ~ 753 Pn~¢ 6 of 12 answer to the first question becomes immaterial. If, on thc other hand, the answer to the second question was in thc affirmative, than the firsl question must also be addressed. Arbitrators are bound by clear language U:rms, including those rclating to the procedures and time limits for the filing of grievances. Exceptions have been recognized, however, where the parties themselves had cvidcncccl frcqueet deviations from negotiated time limits. Additionally, arbitrators have recognized exceptions where the alleged violation is continuous in its nature so that each day reflects a continuing violation and thereby the basis for filing thc grievance. An example is thc case of an employer who continued to make payroll deductions for medical insurance benefits even though the contract language called for the employer to pay for all medical coverage. The fact that the obligation to pay had existed for several ycazs but the employer continued to make such deductions from thc employees pay did not render a later grievance untimely..411egheny Cigarette Service Co., 58 LA 1259 (Kates, Arb.) (i972). The same analytical stream applied to the ease in hand. The issue of whether thc Union was entitled to pay increases based on the wage survey language was an ongoing one, and the D.nion was therefore not precluded from filing the subject grievance, regardless of whether it had the right to file such a grievance during the interim between the expiration of thc 1990/91 MOLl and the signing of the 1992/93 MOD'. Since the answer to the second of the two questions was in the negative there was no material need to address the first question. However, in cases where there exists an allegation of a continuous violation and knowledge of such violation can be imputed to the grieving par~y, arbitrators are hesitant to award a remedy that antedates the filing of the grievance. In this case the Union sought a remedy retroactive to December 17, 1992, the commencement of the 1992/93 MOU, and did not seek remedy for FY 1991/92, hence this was not an issue in these proceedings. Finally, the reason for concluding that the grievance was procedurally arbitrable in relation to the interim between thc FY 1990/91 MOU and the ['la~ 23 0:3 10:37a [415) 2'74-8770 p.8 Firefighters, Local 2274 - "-" ~ho Cucamonen F.P.D. CSMCS C~ ~-' ~2, 3 753 Page 7 of 17 1992/92 MOU also meant that the grievance was procedurally arbitrable as it related to the December signing of the 1992/93 MOU. Even if the cause of action first arose with the signing of this MOU in December, the Union was still not procedurally out of time by filing in May, regardless of what did or did not transpire in the interim. The only issue raised by this latter element was whether, if the Union was successful on the merits, it was entitled to the retroactive remedy it sought, commencing as of December 17, 1992. 1I. The Wage Survey Language DeSpite the Union's assertion as to the clarity of the language and hence the merit of its claim, there was an ambiguity which stemmed from the phrase 'philosophy of compensation." The Union asserted that the language created a contractual obligation to compensate its members based on the applicable average plus five rate. The Employer ass~:rted that the language expressed the Employer's "philosophy," or a sought-after operational objective which could be conditioned by fiscal limitations, but not a contractual obligation as asserted by the Union. The conflicting viewpoints reflected a semantic ambiguity in the subject wage language, as opposed to one where the language is clear and unambiguous but differs from that which is the practice. The Arbitrator's duty in resolving the ambiguity was to ascerlain the parties' intent at the time the language was created. Contract law provides many guidelines that have been traditionally relied upon by arbitrators to resolve similar issues. The application of such interpretive concepts to the hearing record resulted in the conclusion that the grievance must be sustained. The foIlowlng describes the basis for that finding. The suspect language first appeared following the parties negotiations for the 1990/91 MOU. Unlike instances where the disputed language is often the result of the combined draftsmanship of both sides, here the suspect language was solely the Employer's product. Ambiguities in the language will be interpreted against the drafting party. It is assumed that if a party is given the opportunity to draft contract language it has the full Play ~'3 03 10:38a Firefiehters. Local 2274 ability to express clearly its exact intent. It should not profit from ambiguities of its own creation otherwise there may be a temptation to intentionally create such ambiguities and latex benefit from them by claiming that the intent was other than it appeared to be. The Employer's negotiator for the FY 1990/91 MOU, Jim Hart (Hart), testified that at the time the City's employees' salary ranges were based on the average plus five level. Therefore it appeared that the practice reflected by the language as it applied to its other employees at the time the Employer proposed the language to the Union was such as to reasonably suggest that it viewed this as a contractual obligation, and not merely a conditional intent that was subject to fiscal fluctuations. This same negotiator was also involved in discussions for the successor FY 1991/92 MOU that was never agreed upon, and paxticipated during the early stages of negotiations for the subject FY 1992193 MOU, that which conlains the disputed language. He testified that during his involvement in all of these negotiations he never "suggest~' to the Union negotiators that the language guaranteed the fire fighters compensation at the average plus five Ievel. The Arbitrator found greater significance in the fact that there was no testimony that he ever expressly denied that the language contained such a guarantee. In other words, there was no testimony of a clear statement to the Union, at any time during their negotiations, that this language was not viewed as creating, and was not intended to create, a contractual duty. Even though during the failed negotiations for the FY 1991/92 MOU the Union sought the average plus five rate, and this demand was the evolution of the conflict which resulted in the failure to agree to the FY 1991/92 MOU, there was never an express statement that the language didn't obligate compensation at this level; only assertions that the District was not fiscally able to pay at the level and that the City could not ~continue with its philosophy." This further supported the Union's position in that it reflected a realization by the Employer that had it included the language in a successor to the 1990/91 MOU it would be faced with a legal obligation to compensate at that rate. Because it lacked the ability to do May :~3 03 10:38a {415] :~74-8770 p. 10 Fir¢finhters, Local 2274 - "'"' -ho Cucsrno~ga F.p.D. CSMCS Ce_~ "~' 923 753 Pane 9 of' 17 so it would not agree to the language. Again, at no time did the Employer ever tell the Union negotiators that the language did not create an express obligation. At some point around May, 1992, near the end of FY 1991/92, the Union realized it would not get an MOU for that period and focused its attention of getting an MOU for FY 1992/93. Hart left shortly after this and negotiations were abated until his replacement came on board. In November, 1992, ~he new Union president, Michael Eagleson (Eagleson), contacted Hart's replacement, Robert Dominguez (Dominguez). Dominguez asked Eagleson to hold off on negotiations until ]'anuary, 1993, to give him, Dominguez, a chance to settle in his new job. Eagleson agreed but towards the end of December he received a call from Domingeez telling him that Chief Mayfield had unilaterally drafted a~ MOU and would he come and sign it on behalf of the Union. Eagleson ultimately agreed after getting an agreement from Dominguez that the Union had a right to continue with negotiations after this MOU was signed. The signed MOU became the FY 1992/93 MOU and it contained the same survey plus five language which had been first drafted by the Employer in the FY 1990/91 MOU. According to Eagleson, the Union's desire to keep open its options for further negotiations after the signing of the FY 1992/93 MOU was based on its perceived need to discuss the distribution of the compensation package, especially in light of its awareness that there were certain fiscal conditions and political considerations that had to be addressed. It was after the MOU had been signed and during these later discussions that the Employer notified the Union that it would not abide with the average plus five language and on May 6, 1993, the Union concluded it was at an impasse and within a week filed this grievance. Testimony established that at some point after the MOU was signed and before the Union concluded it had reached an impasse it had proposed a salary increase based on the average without the additional five percent. The Employer alleged that this reflected 'knowledge by the Union that the language in the signed MOU did not guarantee them an ~la~ ~ U] 10:38a [415) 274-8770 p. it irefi h ers '~' ~ho.Cucamonea F.P.D. CSMCS C; 92 3 753 Pace $ 0 of 12 average plus five, otherwise why propose something that would have meant getting less than it was already entitled to receive. The Arbitrator concluded that this argument was disingenuous. The testimony established that the average plus five referred to a total compensation package which included both salaries and other benefits. In the past, once the figure was derived from the survey, the parties then negotiated over the allocation of the money and if it was to be paid as sala~ increases, the disbursement schedule. Therefore it was reasonable for the Union to believe that after signing the FY 1992/93 MOU it had acquired the right to the average plus five compensation it sought but wanted to negotiate the distribution. The Union's latter offer to accept a salary increase based on average only was, as argued by Union counsel, an offer of compromise made during negotiations in an attempt to resolve open issues relating to compensation. Finally, other components of the article also supported the Union's claim as to the obligatory, and not discretionary, intent of the language. Specifically, sub-paragraph B.2. states that the philosophy of average plus five "will be implemented." These words are not followed by any conditions such as a reference to an ability to pay. The Employer likened the suspect language to "puffing" and cited Ladas v. California State Automobile Assn., 19 Cal. App.4th 761, 23 Cal.Rptr.2d gl0 (1993) in support of the contention that as puffery it did not create a contractual obligation. In Latins the plaintiff employees sought enforcement of an alleged contractual obligation to maintain compensation in parity with insurance industry standards. This argument was un-persuasive because Ladas differed factually in that the plaintiffs relied in part on statements in an employee handbook which expressed that employer's aim to keep salaries equal to or higher than comparable industry standards in the particular locality. The court found this language was puffery and too vague and indefinite to be deemed as having created a contractual obligation. No such vagueness was present in the language before this Arbitrator. Here the Employer specified the nine cities to be used in the survey and the record disclosed that the parties had Ma~ 23 03 ]0:39a (415t 274-87?0 p.12~ Firefighters. Local 2274 ."~' ~ho Cucamonga F.P.D. CSMCS Ca,"-" .92 3 753 Pace 11 of 12 independently conducted such surveys and h~d reached similar figures. As to the meaning of the language in sub-paragraph B.3. in relation to the reference to compensation, any claimed vagueness was dispelled by unrebutted testimony about what the parties mutually understood to be its intent and their past application of this language. For City employees the salary ranges contained six steps, with pay increases attendant to the first five being automatic with the passage of time and the sixth being a discretionary increase. This offered the City some control over its salary expenditures in that even though it committed itself to certain pay ranges, it could still limit the number of employees who could earn the maximum salaries. The fire fighters had only five steps in their plan and all were mandatory progressions based on time in service. There was no discretionary step therefore any increase in the salary plan obligated the District to pay the negotiated amount. To control this the Employer and Union agreed to negotiate the average plus five amount so that it was used no just for salaries but also for other benefits that comprised employee compensation. The record indicated that this was understood and practiced by the panics during the FY 1990/91 negotiations which created the suspect language. This aspect of the record clarified any remaining issues about the language's intent. Accordingly the Arbitrator concluded that the subject language was not merely ~puffery' but was clear in its intent so as to create, the contractual obligation as claimed by the Union's grievance. Ma~ 23 03 lO:39a (415] 274-8770 Firefi~hters, Loe.~] 22?4 - F~'-~ho Cucamon~,a F.P.D, CSMCS c'~-'-~ 92 3 753 Pa~e 12 of J~ AWARD Based on the foregoing analysis and reasons cited therein, the Arbitrator awards the following as to issues attendant to these proceedings: The subject grievance was timely, and therefore procedurally arbitrable. Article I, Section lB, of the MOU between the parties for the period from December 17, 1992, until June 30, 1993, mandates the District to provide compe~tlon into the District's 5-step aalary plan for the employees reputed by the Union at the average plus five percent of the Compensation which the dries of Fullerton, Ontario, Riverxide, West Covina, Pomona, San Bemardino, Corona, Orange, and Upland provided on May 1, 1~2, to those of their employees in employment classes comparable to those in the bargaining unit represented by Local 2274. The Arbitrator retains jurisdiction for a period of sixty (60) calendar days from the date of this award as shown below. Such jurisdiction is limited solely to issues stemming from the application or administration of this award and any attendant remedies and shall be exercised upon written notice by either or both parties at any time during this period. Los Angeles, California O,. ~ Dave Berry Grievance ~ City Exhibits 1. Employee Grievance Form dated December 17, 2002 2. December 17, 2002 memorandum to Dennis Michael from David Berry 3. December 26, 2002 memorandum to David Berry from Dennis Michael 4. December 24, 2002 memorandum to Board of Directors from David Berry 5. Tuition Reimbursement Provision 6. Grievance Procedure C: \DOc\WPDATA\Berry EL. 216 .wpd Exhibit 1 (No punitive a~lon will be assessed agains~ any ~ployee and/or representative ~or u~Elizin~ ~he ~rievance pFocedvre. The p~epa~a~Eon ~ES 9rlevance shall no~ in~e~qre w~h ~e no~a~ work routine. Please o~ prin~ ~e~b~ in ~nk. Be speci~lc~ concise ~d ~:vxs:o~ ~~.~ ,,, SHZ~s~xo~ i~, RULE, POLZCY, A~REEMENT, ETC,, ALLEGED TO HAVE BEliN VIOLATED ~.C~ Exhibit 2 To: L. Dennis Michael, Fire Chief Date: Dec, ember 17, 2002 From: David B~'t'ry, Captain Subj~'~: T~ition Reimbursement On May 30, 2002 1 was denied full tu~fon r~imbursemen! as per the M.O.U. Article II sub,~don 6. I would like to be reimbursed tljc~maind~ of the milion value for 2001- 2002. Thc amount for 2001-2002 is $23~.51.~ have bern reimbursed $1500.00 to data and would like to be reimbursed the remaining $827.51. Thank-You fo~ your lime, l~vid B~rry 2. Exhibit 3 Date: May 26, 2003 To: Rancho Cucamonga Fire Protection District Board of Directors From: Sam Spagnolo Rancho Cucamonga Firefighters, President Subject: Tuition Reimbursement To whom it may concern, With regards to the Tuition Reimbursement Grievance, the Firefighters Union representatives met with Chief Michael concerning the Tuition Reimbursement Grievance prior to June 20, 2002 and on several occasions thereafter. In each case the meeting for resolution was postponed due to scheduling conflicts, scheduled vacations and other issues that were being addressed at the time. The Firefighters representatives and the Fire Chief unanimously agreed on the extended time frame for this issue. The time frames that were agreed upon were unspecified and could only be described as "when convenient" because of the nature of the grievance and the other issues being addressed. The first meeting concerning Tuition Reimbursement took place on November 26, 2002. Thank You, ~ Sam Sp Rancho C~uc amon g/3/Fire fighters R A N C H O C U C A M O N G A ./~DH I NI&?I~ATIVI~ c$1:I~VlCl~& - Memorandum DATE: December 26, 2002 TO: Dave Berry, Fire Captain FROM: Dennis Michael, Fire Chief BY: George S. Rivera, Administrative Services Manager SUBJECT: Grievance The following is the Fire District's response to your grievance dated December 18, 2002. Article IV, section 5 of the Memorandum of Understanding (MOU) states in part, "The employee and/or representative shall present the grievance in writing and signed, to his or her immediate supervisor within fifteen (15) days of the date that cause for a grievance arises." 'Your December 17, 2002 memorandum clearly sets forth that the denial of greater tuition reimbursement took place on May 30, 2002. This makes the filing of your ?ievance untimely. As to the merits of your grievance, we acknowledge that Article II section 6 of the~ MOU is somewhat ambiguous. On the one hand it establishes a fiat dollar maximum, on the other hand it seems to provide for a yearly adjustment. The fiat dollar maximum of $1,500.00 has been in effect since 1990. Since that time, the Fire Union and the Fire District have negotiated six (6) separate MOUs. At no time has the Fire Union sought to renegotiate the flat dollar amount of $1,500.00. The failure to do ,,~o. nstitutes an acknowledgment that the $1,500.00 is the maximum amount to b,~ rL~irnh,~rsed and is a waiver of any adjustments to the $1,500.00 flat fee amount. / Your ~ievance is denied / CC: Dennis Michael, Fire Chief Lawrence Temple, Admin, Services Director Mike Ploung, Fire Captain Dave Berry Grievance Exhibit 4 To: Rancho Cucamonga Fire Protection District Board of Directors Date: December 24, 2002 ~.C~.~V~.D From: David Berry, Captain c¢r¥ OF RAN~,H0 CUCAMONG~ Subject: Grievance/Tuition Reimbursement DEC 2 6 2002 Statement of Facts: 7,6,9,10,i 1 ,I 2, i ,2,3,4,5,6 The current Memorandum of Understanding (M.O.U.) with the Rancho Cucamonga Professional Firefighters allows for Tuition Reimbursement (Article II, subsection 6) see attachment. On May 30, 2002 I was denied full compensation for tuition and expenses for college courses attended to the full amount allowed for the fiscal year 2001-2002, by being asked to reimburse the Fire District $313.00 as of May 30, 2002 (additional expenses were incurred after that date). Alex Ahumada was directed to request me to pay the $313.00 back. The M.O.U. states that reimbursement is for out of pocket expenses up to a specified maximum incurred in the pursuit of a degree from an accredited college or university. Reimbursement is for tuition, books, supplies, parking, lab expenses, and miscellaneous expenses for taking the course(s). The maximum tuition reimbursed is set on a fiscal year basis with the total reimbursed being the average of the costs for course work at California State University Fuller[on, Cai Poly Pomona, and the California State University San Bernardino. For the Fiscal year 1990.91 the maximum reimbursement was not to exceed $1500. In the fiscal year 1990-91 the average cost of tuition for the three colleges was $1157.50 leaving $342.50 for the other expenses. In fiscal year 2001-02 the average cost of tuition for the three colleges was $1858.00. By comparative analysis of inflation the other costs that were $342.50. in 1990 were $464.09 in 2001. The total allowable reimbursement for fiscal year 2001-02 was $2322.09. I would like to be compensated the full allowable reimbursement according to the M.O.U. for fiscal year 2001-02 of $2322.09. $1500.00 has been reimbursed as of this date so the remaining balance is $822.09. This matter was brought to Chief Michael and after three meetings (11/26, 12/10 and 12/17) with Chief Michael, Larry Temple and George Rivera they were unable to resolve this disagreement. He said the City Manager was advised of the situation and offered full reimbursement of $2267.33 for 1 year of the contract. This is unacceptable because the contract is for 3 years. He also said the figures that were presented to them were acceptable and they appreciated the work and research in compiling the information. The informal grievance process was unsuccessful. A formal grievance was handed to Chief Michael on 12/17/02 @ 1705 hrs. Chief Michael has failed to respond to the formal grievance as of 12/24/02. As a result of Chief Michael failing to respond to this issue as part of the formal grievance procedure. The grievance will progress to step III as outlined in the M.O.U. I hereby request a formal hearing that is a closed personnel session. Thank-You for your time. Witnesses: · David Berry (Grievant) · Mike Ploung · Mike Eagleson · Tom Salisbury · Alex Ahumada · Jim Hart · Ivan Rojer · Jeff Wenger · Bob Eggers · Steve Kilmer · Jeff Roeder David Berry, Captain Mike P ~lo~/ung, Ui~on Stewart Exhibit 5 Resolution No. FD 00-012 Pag~ ]6 of 36 ]3. Denlal lnsursnce ,District shall continue to p~ovide fully pnid employee and ~am~ly dental insurance ~lan for all full-time continuoua employ'ecs. C. ~islon Insurance ~e Di.~tricl shall cominue to provide vision cmc coverage ~r all i~tl time continuous employees with a maxin~um paymenl of not 1o cxcc'cd $22.2S ~ month. agree to contri~ole 0.03% of their sala~ adjusxmcm lo {u~d thch ct,ntribution of 52.00 a for vision insurance. The above amount of~22.25 includes linc employees' contribution. Thc employee shall pay the cost of vision insurance in excess of ~22.25 of the contract, Districl shall provide advanced no~ice to thc union tcp~cscntatlves, if p~ssihle, at lea~ thi~y (30) days. l.ife lnsuraner All ~l]-lime conlint;ou~ employees shall hc i~oxided a lcrm lil~' i~su~nnce policy of $30,000, paid by DislricL ~ 6, Tuition Reimbu~e~ent -ock~ exn~S {up 1o a specified maximum) incurr~ in Ibc purstln ol a d% . . include mil~e or g~olin¢ ~eimbursem~l or work hour pay. The maximum tuition reimbursed is scl on a fiscal x'car ha~is with the lolal ~elmbursed bein~ the average of the cosls l~r coulse w'or~rnm Rlate [ 'mvcrs~t5 pfior to taking the course. A. Benefits Sy~cm. All benefits provided DL¥lri¢'l employees under the/)txlric[s Plan are paid by thc Exhibit 6 Resolution No. FD 00-012 Page 26 of 36 B. Criminal Subpoena t Pursuant to California Penal Code ,~ ' ~ ' 1 .,~6. ct..wq., il' an employee i:, :,erred with a criminal subpoena, the employee will be paid at the reoular hourly rate while m 2. District transportation will be provided when available If the employee uses their own transportation, they will be reimbursed bx Distrtct [~l tile pres aflme mileage rate. ~ 3. If the employee is required to appear in courl oulslde Ibc Rancho Cucamonga Fire Protection District and this appearance requires the cmploxee t~ buy a nlcah tie or she will be reimbursed. If an extended appearance in court is nccc.,,arv where I~M,,ln., and meals would be required, authorization shall be obtained from the departmcn~ bead: 4. A criminal subpoena need not have a cuurt sl;llnp afhxed. § ! 1. .Leaves of Absence Without Pay A, Upon the written request of the employee, a leave of absence may bt' granted for a period not lo exceed thirty (30) days by the Fire Chief. or a permd not to exceed one t 11 year by the Board of Directors. B. Failure of the employee to remm to his or her employment upon thc termination of an authorized leave of absence shall constitute a separation from ~.crv~cu ot dial employee. C. Leave of absence without pay granted by the Board shall not bc construed as a break in service or employment. During these periods, vacation, holiday, or sick leave credits shall not accrue. An employee reinstated after a leave of absence wi;hour pay shall receive the same step in the salary range received when he or she began the leave of'absence. Time spent on such leave without pay shall not.cgum toward service for increases within the salaD' range· For purposes of this section, die'employee's merit increase eligibility date shall be adjusted to the dale of reinstatement. '"'" ' ' ' D. An employee on an approved leave of absence without pay ma.'.' continue medical insurance coverage by paying the full cost to District. in advance, t~0r each month, or portion thereof, of which he or she is absent. .ARTICLE IV GRIEVANCE PROCEDURE § 1. purpose This article is intended to provide a fair and orderly procedure for the resolution of employee grievances involving wages, hours and terms and conditions of employmem. A grievance is a claimed violation, misinterpretation, misapplication, or noncompliance with Resolution No. FD 00-012 Page 27 of 36 existing District codes, resolutions, rules, regulations, or this documem. § 2. .Objectives The grievance procedure is established to accompli.,,h the following ob ec ixes: A. To settle disagreements al the cmNoyee-~,upervisor level. informally il' possible. B. To provide an orderly procedure to handle grievances, C. To resolve grievances as quickly as D. To correct, if possib e. the cause of -"flex ance.~ to prevent future sm~ilar complaints. E. To provide for a two-way svstem of commonication by making possible for levels of supervision to address problems.'co~plaints, and questions rai~ed bv employees. F. To reduce the number of grievances by allc, wing them lo be expressed and thereby adjusted and eliminated. O. To promote harmonious relations generally among crop Wees their supervisors and the administrative staff. H. To assure fair and equitable treatment of all cmployec~. § 3. General Provisions A. Preparation of a grievance will be accomplished in such a manner and at a time that will not interfere with normally required work procedures. B. No individual member- of ihe Board of Directors shall be approached at any time that the grievance is being processed. C. Failure of the grievant to comply with time limitations specified in the grievance procedure shall constitute a withdrawal of the grievance, except upon a showing of good cause for such failure. Failure of District supervisory, or administrative staff to comply with specified time limitations shall permit the grievant to proceed to the next step in the procedure...E. XCEPTION: Notwithstanding the above, an extension of time is permitted with the mutual consent of both panics. D. tn the event a grievant elects to represent himself or herself or is represented by counsel other than that provided by the employee organization, the employee organization shall be apprised of the nature and resolution of the grievance if the issues involved z. v.z, ,~..~..~.;'~.,~o~':, 3. ~ 4. c 20 Resolution No. FD 00-012 Page 28 of 36 are within the ~cope of said organization's representation rights. E. If an individual named in a dispute is unavailable within the time period ,peel fled in these procedures, time limitations can be extended by mulual agrcemem of rcpre,ematives pi the respective parties. F. An.,.' period of time specified in this rule for the giving of nouce or taking ol an.',' action exclude weekends and holidays. § 4. Jnformal Grievance Procedure Most problems or complaints can be settled il' the cmplovec '.*.'ill prom[}l}'V. informally' anti amicably discuss them with his or her ~mmcdiate superx:isor. Such an initial discussion shall precede any use of the formal grievance procedure. If thc immediate '~uper','~,or fails to reply to the employee within lhree (3) days. or the entplovee ~s not satisfied with tile decision, thc employee may utilize the Formal Grievance Procedure. § 5. Formal Grievance Procedure A. Step 1 The employee and/or representative shall present the ~r~ex'ancc. in wrifin,_, and signed, to his or her immediate supervisor within fifteen ( I51 days oI"the date that cause'for grievance arises. An official grieva.nce form must be used statin~ names, dates t me~.. place, and nature of grievance. The employee s supervisor shall attempt to resolve the arie;'ance w~th Ibc employee and shall submit his or her decision in writing to the employee ,.vu~in three 13} days after receipt of the grievance. The employee shall have the right to appeal the decision of the supervisor to the Fire Chief. B. Step II 1. If the grievan~ is in'pt resoh.ed to the satisfactton of the employee. the grievant has three (3) days following receipt'of the written response from his or her supervisor to file a written appeal to the Fire Chief or designated representative. 2. Written appeal to the Fire Chief or designated representative shall consist of the statement of the grievance and shall include a statement-by }he ,'r evant's representative setting forth the reasons why the response of the employee s supervisor did not satisfactorily resolve the grievance and an indication of the action 0esired by the grievant. 3. After submission of the written appeal, the Fire Chief or designee shall [eply within three {3} days. in writing, to the grievant regarding the grievance. In event of rejecuon, reasons for so, doing will be~ !,5!U.?~:~.?e response. 02 03: ~6p Page ~9 of 36 C. Step 111 If thc ~orievance is not resolved by the Fire Chief or dcsi,.'nce to the satisfacuon of the griex ant. the grievant may. within three (3) c~avs, then file a ~vritten~appeal to the Board of Directors. An appeal to the Board must include a complete statemcn of facts supporting the grievance, a statement by the grievant or representative setting forth the reasons why the Fire Chief or designee did not satisfactorily resolve the o-rievance and a Iisi of x~ ilncsses-the ur;ex'ant would call to testify. The grievant may request a formal hearln£ before the Board and, further, may request the hearings to be a closed personnel session, Thc'Board .shall schedule such hearings within ten (10) days after receipt of the request. The Board shall ~,ubmlt its deci.,,~on, m writing, to the employee within ten { I0) days of the date of the hearing. If no sub nittal is made. the grievance shall be deemed rejected and the decision of lhe Fire Cllief or designee ~,ustained. D. Step IV If the grievance is not settled in Step II1. binding arbiw,tion may be invoked in accordance with the following: I. The request for arbitraticm must be :,uhntitted v,'ithin ten t l(}i days of receipt of thc decision of the Board of Directors. 2. A "Fact Sheet" must be submitted to thc arbitrator by both pi rius. stating the nature of the grievance and desired action, 3. The term "arbitrator," as used herein, shall refer to a sin,ale arbitrator. - 4. A list of five (5) arbitrators shal be requested from the California State Conciliation Service. The hearing arbitrator shall be chosen by an initial flip of a coin. with the winning side. Board or grievarlt, having the first choice of either selectin~ the arbitrator or eliminating one (1) candidate. The turn shall ti'ich revert to the other side. 'v','[ao then can exercise the. same option. This procedure continues ~ntil either an arbilrator is a_oreed upon or there is only on,' ( 1 ) candidate remaining. 5. The arbitrator so selected shall hold a hearing at a Iime and place convenient to the parties involved. Statements of position may be made by the parties, and witnesses may be called. The arbitrator shall have the initial authority to c~etermine whetber or not the dispute is arbitrable under the express terms of this Memoran~tum of Understanding. Once it is determined that the dispute is arbitrable, the arbitrator shall proceed in accordance with these provisions to determine the merits of the dispute submitted to arbitration. 6. The location and time of the hearing shall be mutually agreed upon by both parties. If an agreement cannot be achieved, each party wilt submit their location and time to be drawn by chance. nov == u¢: u===~p p. IB / Resolution No. FD 00-012 Page 30 of 36 7. All expenses which may he involved in the arbitration proceedings, shall be borne by the parties equally: however, expenses relating to the calling of witnesses or the obtaining of depositions or any other similar expenses associated ~ ~th ".L~ch proceedm,.z,s shall be borne hy the part.'.' at whose request such witnesses or depositmns are required. 8. Legal counsel may be obtained by either part5. it' Ihey so wish. Expenses for legal counsel shall be borne by the party obtamin,.: such counsel. 9. The pay for the arbitrator ,,,,'ill be based upon the fcc charged by the California Sta~e Conci ialion Service for such services. 10. Failure on the pan of the District's represcntauvc grievant/griexant's representative to appear in any case before an arb r; t{ r wiflmut good and sufficient cause. :,hall result in forfeilure of the case and rcspon~,ihihtv for pavmcnt of all cost~, of arbitration borne by the party failing to appear. ' - 11. The decision of the arbitrator shall bc final and bmdm,, upun District and appellant. District and employees in the Association shall conform m and comply with all health. ~:afety. and sanitation requirements imposed by Districl. state or federal la'`'`' or regu a ions adopted under state or federal law. ' § 2. No Discrimination No employee shall be in any way discriminated against as a result of reporting any condition believed to be a violation of Section I of this Article V. Should the employment duties of an employee in the unit. in the cstimauon of OS HA. require use of any equipment or gear to insure the sa(err of the en'Jployec or others. District agrees to furnish such equipment or gear. § 4. Em~)lovee Responsibility in the course of performing their normally assigned work. employees will be alert to observe unsafe practices, equipment, and conditions; as well as environmental conditions m their immediate area which represent health hazards and will report such conditions to their immediate supervisor. All employees shall make certain that all power machineD· is equipped with safe~v devices properly installed and in working condition and that co-workers use utmost care in the handling of tools and equipment. Employees shall report all accidents immediately to -':..=.c...~..~.. ?.--a..~c:-: :. :.;. c Page BEFORE THE CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA In The Matter Of: DAVID BERRY, Grievant. TRANSCRIPT OF PROCEEDINGS Rancho Cucamonga, California Wednesday, May 28, 2003 Reported by: JACLYN K. VERKLER CSR No. 12647 JOB No. 5867M M&M Court Reporters, lnc. 714-972-2300 877-472-2300 Page 2 Page 4 I BEFORE THE CITY COUNCIL 1 INDEX 2 OF THE CITY OF RANCHO CUCAMONGA 2 Gfievant's 3 Witness: Direct Cross Redirect Recross 4 In The Matter Of: ) 3 ) Mike Pulong 27 33 39 5 DAVID BERRY, ) 4 ) Employer's 6 Grievant. ) 5 Witnesses: Direct Cross Redirect Recross ) 6 Dennis Michael 40 45 61 53, 62 7 7 GeorgeRivera 65 68 8 8 9 9 10 10 Il 11 12 12 13 13 14 14 EXH1BITS 15 15 PAGE 16 TRANSCRIPT OF PROCEEDINGS, taken at 10500 16 1 - 6 Joint Exhibits 1 through 6 13 17 Civic Center Drive, Rancho Cucamonga, on 17 I - 2 Grievant Exhibits I through 2 13 18 Wednesday, May 28, 2003, before the City Council 18 19 of Rancho Cucamonga, beginning at 5:06 p.m. and 19 20 ending at 7:32 p.m. before JACLYN K. VERKLER, 20 21 Certified Shorthand Reporter No. 12647. 21 22 22 23 23 24 24 25 25 Page 3 Page 5 I APPEARANCES: 1 MR. ALEXANDER: Mr. Markanan, do you want to go 2 2 ahead with the procedures? 3 3 MR. MARKMAN: Yes, sir. For the benefit of the DAVID BERRY, in pro per 4 people here, I did supply suggested procedures some months For Employer: 5 ago to the staffand to thc fire association. I haven~ 5 6 had anybody comment on it; but for the benefit of the 6 BY: STEVE A. FILARSKY 7 council and those here, why don't I just mn through those Manhattan Beach. California 91730 9 First of all, we're here because this is a final 8 (310) 545-7825 10 step in the grievance -- well, this is the last step l0 William J. Alexander 11 within the city structure of the grievance procedures City Mayor 12 provided for the MOU between the fire protection district I I 13 and the Rancho Cueamonga professional fire fighter. This 12 Mayor Pro Term 14 is a grievance which was filed by Captain David Berry that 14 16 The hearing as you can see is open tO the public. Rex Outierrez 17 The deliberations will be open to the public. I do not 16 Robert Howdyshell 18 believe there is a Brown Act exception or closed session Council Member 19 exception for grievance procedure because I can't find one Donald Kunh, M.D. 20 and no one suggested there is one. 18 Council Member 21 I think at this point it might be helpful -- when 20 22 I get through describing, I think it will be helpful for 21 23 council to identify themselves as well as the presence of, 22 23 24 I guess, Captain Berry. 24 We're trying not to over formalize this, although 2 (Pages 2 to 5) M&M Court Reporters, Inc. 714-972-2300 877-472-2300 Page 6 Page 8 I it is a little more formal and different from what the I oath in her hands. I'm not going to try to apply it. The 2 council is used to, principally because you may have the 2 rules of evidence are as if we were in court, but the 3 presentation of, first of all, evidence by way of 3 closer you come to that, actually the more helpful it is 4 documents that are marked as exhibits and kept track of. 4 to get through the process. 5 There's a court reporter here who is recording everything 5 So you may hear objections which I would have to 6 yousay. She can't record your frowns, yourfaces, or 6 presentarulingon. My ruling-- you do not have to 7 your expressions. She will record what you say, so it's 7 agree with my ruling, ff the board wants -- eventually, 8 important, particularly for me, not to talk too fast and 8 if I have to sustain an objection, if the board wants to 9 for two people not to talk at the same time. 9 hear the question and answer or the evidence come in, you 10 You're also going to have the presentation of 10 can overrule me by majority vote and go forward on that I 1 testimony by a question-and-answer process possibly with I I basis on your own. 12 the right to cross-examination. The burden of proof is on 12 Afl.er the evidence is presented by the -- by 13 the person who is processing the grievance which is 13 Captain Berry, Mr. Film'sky and the staff will be abte to 14 Captain Berry. He has to prove both the existence of the 14 present their case, and then we will have rebuttals and so 15 ground for the grievance, timeliness of the appeal, 15 forth until they have ceased presenting evidence. 16 propriety of the remedy for which he is asking for. 16 When that's done, if there is going to be 17 He has to prove this by the preponderance of the 17 presented documenta~ evidence, exbibits, 1 would suggest 18 evidence. I'm not going to get real technical and read 18 at that time when the testimony is over, that all the 19 you the jury instruction on preponderance of the evidence 19 exhibits that had been admitted, that you, the council, 20 suffice it to say, it's credible evidence which in your 20 will take some time, take a recess, and read those 21 mind outweighs credible evidence presented on the other 21 exhibits prior to closing statements so that you have a 22 side. Ifs not beyond a reasonable doubt or some such 22 real opportunity to see what's in the exhibits. 23 test, it's a preponderance, that evidence which you find 23 After you've done that, we come back and we'll 24 to be more convincing than the evidence presented on the 24 have closing arguments. First will be again by 25 other side. 25 Captain Ben3' and then Mr. Filarsky, presumably, and then Page 7 Page 9 1 The way it will go is we will possibly have an 1 he will get a ehanee to rebut. And then tbe mattor will 2 opening statement from the grievant, Captain Ben3'. I 2 be up to you and you will be deliberating in public. 3 have an understanding that two people ~vill wish to speak 3 Again, I don't have a closed-session exception for this 4 on his behalf at that time, which is fine. Mr. Filarsky 4 kind of process. At the end of deliberations, you will be 5 who is representing the staff, can then make his opening 5 instructing the preparation of the resolution that should 6 statement or he can reserve that until it's time to 6 include certain things you believe were proved and a 7 present his case at his choice. 7 result. 8 At that point we're going to ask these people if 8 1 had asked or suggested that if tbere were 9 they stipulated to anything, particularly evidence that 9 findings that either side wanted to present that they 10 you can receive to make it a lot easier if it's done that I 0 think they can support through the evidence that you can I I way. I don't know if anything like that has happened or 11 adopt to reach your conclusion, that they would have those 12 whether there will be exhibits, but it will be helpful if 12 reedy to present when they come forward with their case. 13 it's done that way, if not, then we will move on. 13 I haven't received any of this staff in edvance. So 14 And after we're done with that and we'll see if 14 that's it. 15 there's any factual stipulations, after receiving such 15 Mr. Mayor, 1 suggest at this time that 16 stipulations, it will be Captain Berry's opportunity to 16 the proceeding commence with the opening statement by 17 present his case through testimony or other forms of 17 Captain Berry. 18 evidence, and there will be direet examination by his 18 MR. ALEXANDER: lthinkforthepuvposeofthe 19 people. I don't know how he's going to proceed. He may 19 young lady who's doing the record keeping, we should 20 want to make a statement, he may be examined by counsel or 20 probably go through roll call since we didn't do that yet. 21 other representative of his choice. Mr. Film'sky will 21 MR. MARKMAN: Yes. 22 then eross-examine and so furth and so on, untilthey're 22 MR. ALEXANDER: Alexaaderisbere. Gutierrez? 23 done and then this board also has the opportunity to ask 23 MR. GUTIERREZ: Here. 24 questions of any witness on that subject matter. 24 MR. ALEXANDER: Howdyshell? 25 The wimesses will be swom by Kathy who has an 25 MR. HOWDYSHELL: Here. 3 (Pages 6 to 9) M&M Court Reporters, Inc. 714-972-2300 877-472-2300 Page l0 Page 12 · 1 MR. ALEXANDER: Kurth? I is a gray notebook that has six-tabbed exhibits in it. 2 MR. KU RTH: Here. 2 There's an exhibit list in front of that book that says 3 MR. ALEXANDER: Williams? 3 city exhibits. 4 MS. WILLIAMS: Here. 4 Parties are in agreement to make these joint 5 MR. ALEXANDER: Is there any questions of any 5 exhibits. So if you could just mark offon your exhibit 6 members of the board before we start? 6 sheet that these are joint exhibits and parties would 7 I have a couple of questions. First of all, I'd 7 stipulate to the introduction of these six exhibits. In 8 like to find out, identification on the agenda indicates 8 addition, the grievant has two exhibits which have been 9 that communications from public first, which I understand. 9 marked. Th9 first is a May 26, 2003, memorandum or letter 10 However, item C is conduct close session. That should not 10 to the board ofdirentors from Sam Spagnolo. Exhibit 11 be number C; is that correct? 11 Grievant Number 2, is the arbitrators award in prior 12 MR. MARKMAN: As I understand it, that was a 12 athitration involving the district and fire association 13 mistake, and assuming there's time, that would happen at 13 dated August 8, 1994. 14 the end of this hearing. 14 MR. MARKMAN: Do we have copies of those? 15 MR. ALEXANDER: But can it be made item D on 15 MR. FILARSKY: Actually, Mr. Markrnan, they were 16 this? 16 short one of the arbitration award exhibits. 17 MR. MARKMAN: You can just take it out. 17 MR. MARKMAN: I also would like to -- without 18 MR. ALEXANDER: I'd like to make it item D. 18 taking these away from counsel members, I'd like sets of 19 MR. MARKMAN: In other words a~er the hearing? 19 both of the things you just mentioned. 20 MR. ALEXANDER: Yes. And item C would be the -- 20 MR. F1LARSKY: Okay. Youhavetbe graybookin 21 MR. MARKMAN: And you're right, Mr. Mayor, maybe 21 front of you, sir, up on the edge. You have Grievant 22 you should ask -- all this is very strange, but under the 22 Number 1. The court reporter has everything except 23 Brown Act you should ask if any member of the public wants 23 Grievant Number 2. 24 to address the subject mauer only of this meeting, which 24 MR. MARKMAN: So we need one for the court 25 is this grievance before we get into the bearing. 25 reporter. The next thing 1 want to ask is, Mr. Eagleson, Page 11 Page 13 I MR. ALEXANDER: And there is no communications I are there any objections to the admission of these 2 from the public for general, only on that item. 2 exhibits that were just described into evidence? 3 MR. MARKMAN: If someone wants to do so. 3 MR. EAGLESON: Actually, you should be addressing 4 MS. WILLIAMS: Just to clarify. You are actually 4 DaveBerry. 5 just reversing D and C. 5 MR. MARKMAN: Oh, okay. 6 MR. ALEXANDER: That's correct. 6 MR. BERRY: I just want to make sure that the 7 MS. WILLIAMS: Item D and C just reverse? 7 joint Exhibits and the grievant are separate exhibits, but 8 MR. ALEXANDER: And essentially, there will be no 8 they were put together. 9 communications from the public on any other item other 9 MR. MARKMAN: Right. What I suggest is that we 10 than what we're here for. 10 have Joint Exhibits I through 6, they will be so noted for 11 MR. MARK/VlAN: That's fight. 11 the record. And we have Gfievant Exhibits 1 through 2. 12 MR. ALEXANDER: In that case, is there anyone 12 (Joint Exhibits 1 through 6 and Grievant 13 here in the audience that would like to address the item 13 Exhibits 1 thorough 2 were marked for 14 that is before us this evening before we get into the 14 identification by the court reporter.) 15 formal hearing? Okay. So noted there is none. 15 MR. BERRY: Right. 16 MR. MARKMAN: Okay, then. 16 MR. MARKMAN: And am l correct, Captain Ben3' and 17 MR. ALEXANDER: 1 understand the opening 17 Mr. Filarsky, that you're beth stipulating these may be 18 statement will come first from the grievant; is that tree? 18 entered into evidence? 19 MR. MARKMAN: Let me ask a question -- yes, ~ir, 19 MR. FILARSKY: Correct. 20 that's true. Let me ask a question first. Does either 20 MR. MARKMAN: Mr. Mayor, then I suggest that you 21 counsel have any stipulations to present or agreed upon 21 order those into evidence as so identified. 22 evidence to present before we get into the hearing? 22 MR. ALEXANDER: So ordered. 23 MR. FILARSKY: Yes, Mr. City Attorney. Prior to 23 MR. MARKMAN: With that, the opening statement by 24 the commencement of the hearing, 1 conferred with 24 Captain Berry. 25 Mr. Eagleson and Mr. Berry, and before each council member 25 MR. BERRY: Mr. Markman, l can sit here or where 4 (Pages l0 to 13) M&MCourtReporters, lnc. 714-972-2300 877-472-2300 Page 14 Page 16 I would it be best for me lo sit or stand? 1 fire district and their December 26th, 2002, response 2 MR. MARKMAN: That's up to you. 2 alone is enough evidence to prove that the fire district 3 MR. ALEXANDER: Stand there if you would like. 3 is compelled to grant the grievance. 4 Do you have to swear in Kathryn? 4 In addition, it will be shown that this issue of 5 MR. MARKMAN: Not at this point, he's making 5 ambiguity has already been decided between the fire 6 argument. 6 district and the association in the 1994 arbitration 7 MR. ALEXANDER: All right. 7 award. In that decision the arbitrator ruled that as a 8 MR. BERRY: Bethre I get started, Mr. Eilarsky 8 basic principle of drafting contract language, that when 9 and I had talked about where our witnesses will sit. Do 9 there is an ambiguity in the language, the ambiguity will 10 we still want to put them here? 10 be interpreted against the drafting party. The adaitratur 11 MR. MARKMAN: That's pretty hard with them way 11 went on to say that it is assumed that ifa party is given 12 over there for the reporter. Maybe I should move way over 12 the opportunity to draft the contract language, it has the 13 there. 13 full ability to express clearly its exact intent, and the 14 THE REPORTER: As long as everyone speaks in the 14 drafting party should not profit from ambiguities of its 15 microphone, I should be okay. 15 own creation, otherwise, there may be a temptation to 16 MR. MARKMAN: That's fine. 16 intentionally create such ambigaities and later benefit 17 MR. BERRY: Members of the board, Mr. Mayor; I'm 17 from them by claiming that.the intent was other than it 18 here tonight this evening to appeal the fire district 18 appeared to be. 19 December 26th, 2002, response to a grievance filed by the 19 Also, you will hear testimony of the intent of 20 association regarding Article Il, section six of the 20 Article Il, section six, from those who were at the 21 memorandum of understanding between the Rancho Cucamonga 21 negotiating table when this article was originally 22 Fire District and the Rancho Cueamonga Professional Fire 22 negotiated. 23 Fighters Association. 23 Thank you. 24 It is the association's contention that the fire 24 MR. MARKMAN: Is there more? You said there ma 25 district has violated this section. In their response the 25 be two people. Page 15 Page 17 I district contends that the grievance was ultimately and 1 MR. BERRY: I'm the only, sir. 2 the language -- I'm sorry. The grievance was untimely and 2 MR. MARKMAN: Do you want to make your statement 3 the language of section six is ambiguous. As to the 3 now? 4 timeliness of the grievance, tonight you will hear 4 MR. FILARSKY: What I'd like to do is reserve my 5 testimony from wimesses that will state there was an 5 opening statement; however, l would like to make a motion 6 agreement between parties to hold off on the advancements 6 to dismiss at this time. The motion is based on the 7 of this grievance. This agreement was reached so as to 7 timeliness issue that Mr. Berry has raised in his opening 8 allow the fire district and the association to deal with 8 statement. So I'd like to address that motion if I may 9 other personnel mat~ers; therefore, making the grievance 9 now. 10 timely. 10 I believe it's a jurisdictional issue before this 11 In the fire district's December 26th, 2002, I 1 beard, and I believe that there is no need to consider the 12 response, the district claimed that the 1500-dolar amount 12 merits of the grievance if you determine it's untimely. 13 has been in place since 1990. Since that time the 13 With respect to the package of documents that you have in 14 association and the fire district have negotiated six 14 front of you, if you take a look at tab two, exhibit 15 separate MOUs, and at no time has the association sought 15 number 2, which is Mr. Berry's original grievance which 16 to reoegotiate the 1500 dollar amount. They claim that 16 specifically says that on May 30th, and then it goes on to 17 failure to do so constitutes a waiver. 17 describe the events of May 30th where he was reqtfired to 18 Tonight you will hear testimony that fire 18 reimburse the city for an overage that he received for 19 district employees have received more than $1500 in a 19 tuition reimbursement. Then you have that memo, or that 20 single year for tuition reimbursement. Therefore, not 20 grievance is dated December 17th, 2002, over six months 21 only did the association not waive their right to the 21 after the date of the alleged incident that leads to the 22 additional amount for tuition reimbursement, the fire 22 grievance. 23 district by its own actions has conceded to the Iroe 23 You have exhibit number 3 which is the initial 24 meaningofArticlelI, section six. As to the issue of 24 respoase to that grievance from the fira chieE Andin 25 ambiguity of the contract language, the admission by the 25 that grievance, that grievance response, he specifically 5 (Pages 14 to 17) M&M Court Reporters, lnc. 714-972-2300 877-472-2300 Page 18 Page 20 1 out the MOU provision that requires a grievance to be 1 grievance. 2 filed within 15 days of the event leading to the 2 This is what makes the grievance timely: 3 grievance, and he raises that in this response, exhibit 3 "Exception, notwithstanding the above, an extension of 4 Number 3. 4 time is permitted with the mutual consent of both 5 If you turn to the grievance procedure which is 5 parties." This is why the grievance is dated six months 6 tab six, section five, which is on page 21, that language 6 later, because I have testimony to prove that; and I have 7 reads: "The employee and/or representative shall present 7 a witness that will also prove that meetings had taken 8 the grievance, in writing and signed, to his or her 8 place in a timely fashion in the informal process with the 9 immediate supervisor within 15 days of the date that cause 9 fire chief. 10 for a grievance arises." The language shall is mandatory, 10 Now -- excuse me, one second. So I will be - 1 11 itisnotdiscretionary. 11 will be able to show that. AIso, the document that you 12 It is undisputed that the first time a written 12 have that's listed as Grievant I is a letter from the 13 grievance was filed in this case was on December 17th, 13 association president in which, in fact, supports my 14 2002, again, more than six months after the alleged 14 position of the grievance being timely. Should I read 15 occurrence. Just like a civil court action where someone 15 that or-- 16 is late to the courthouse by filing that complaint, a day 16 MR. MARKMAN: It speaks for itself. 17 late or six months late, the complaint is dismissed for 17 MR. ALEXANDER: If you give us just a second. 18 lack of jurisdiction. 18 MR. BERRY: I know they can read. 19 The district believes -- the district staff 19 MR. MARKMAN: Why don't you continue. 20 believes that the grievance procedure was not adhered to 20 MR. BERRY: In addition to the letter, as I 21 and that in order to give sanctity to that grievance 21 stated earlier, 1 do have a witness. My first witness 22 procedure, that that grievance procedure should be 22 will support the fact that the grievance is timely and 23 enforced. And we are respectfully requesting you to 23 there was an agreement between the fire district and the 24 dismiss this grievance now as being untimely. 24 association to extend these grievance proceedings until a 25 MR. ALEXANDER: Now, I'm going to need some 25 more timely, more convenient time because of numerous Page 19 Page 21 1 assistance here. 1 personal i~sues that were in the process, and all parties 2 MR. MARKMAN: Yes. 2 did agree unanimously on that. 3 MR. ALEXANDER: Does that take a uni~Jersal 3 MR. ALEXANDER: Now, it seems that it is 4 agreement of this body? 4 appropriam that witnesses be heard before anything is 5 MR. MARKMAN: No. If three members of this board 5 addressed. 6 wish to adopt that position, then you can. 6 MR. MARKMAN: That's going to be the question. 7 MR. ALEXANDER: And it's appropriate to discuss 7 Do you have anything else you wanted to add? Is 8 it once it's over and done? 8 it your position that nobody ever agreed on a specific 9 MR. MARKMAN: I'd -- unless l hear an objection. 9 deadline date, that there was open extension based on 10 They have tbe right to respond. We may also have a few 10 theseconversafions? 11 questions before this motion gets to you for deliberation. 11 MR. BERRY: Yes, sir. 12 Why don't you guys respond. 12 MR. MARKMAN: And that, therefore, the deadline 13 MR. BERRY: I would like to respond in response 13 was open..endedly extended? 14 to Mr. Fdarsky's motion. In that same gray notebook, 14 MR. BERRY: Yes, sir. 15 Mr. Filarsky is referring to a formal grievance procedure. 15 MR. MARKMAN: And youYe going to present 16 Prior to the formal grievance procedure, there's an 16 evidence to that? 17 informal grievance procedure that takes place. And that's 17 MR. BERRY: Yes, sir. 18 what I'm going to address right now. 18 MR. MARKMAN: Mr. Filarsky, dohaveyoua 19 In that informal procedure, ir; that same gray 19 response to that? 20 notebook, it's listed as exhibit 6, on the second page 20 MR. FILARSKY: l have a response to a couple of 21 which would be page 20 at the bottom, under C on that 21 things that Mr. Berry miser. 22 page, under general provisions. I'm going tn slow down so 22 First off, the provision that he referred to, 23 I make sure everyone is with us. UnderC, ifyouseein 23 section C on page 20 does not apply to the initiation ofa 24 large letters it says "exception," and weYe talking about 24 grievance. The first part of that paragraph says, 25 the general provisions and this is the beginning of the 25 "failure of the grievant to comply to time limitations (Pages 18 to 21) M&M Court Reportem, Inc. 714-972-2300 877-472-2300 Page 22 Page 24 I specified in the grievance procedure shall constitute a I notebook, and I will have to go find it. The memorandum 2 withdrawal of the grievance." That language suggests that 2 that was issued in response to my grievance dated December 3 the grievance has already been filed in a timely manner 3 26th, and this is exhibit 3 in that gray notebook. Mr. 4 and is now going through the steps, and the failure to 4 Filarsky just said that the chief himself raised the 5 comply with the following steps constitutes a withdrawal. 5 question about timeliness; however, in the response that 1 6 This language concerning the exception does not apply to 6 received, the fire chief did not send this. It was sent 7 the initiation of the grievance from the get-go. 7 by George Rivera, never initialed by Chief Michael, it was 8 Secondly, if there is going to be mutual consent, 8 only cc'd to Chief Michael. So it appears that Chief 9 it should be evidence in writing, and there is absolutely 9 Michael never responded, George Rivera did in Chief 10 nothing in writing evidencing mutual consent. 10 Michael's absence. If Chief Michael would have agreed m 11 Thirdly, when the chief responded to the I I this document, I would imagine that he would have 12 grievance, and I presume that the allegation is going to 12 initialed it next to his name and he did not. 13 be that the chief agreed to mutually extend this filing 13 MR. MARKMAN: 1 had a question, another question 14 deadline, the chief himself raised the timeliness issue. 14 for you, Steve, if you dofft mind. Exhibit one, 15 If timeliness had been mutually agreed to, then it is 15 Grievant's Exhibit 1 has as clear an allegation or 16 inconceivable that the chief would raise the timeliness' 16 assertion as I can irmgine that flat says the fire 17 issue as part of his response. That was his initial 17 fighters and repmsentetives and the fire chief 18 response saying it's untimely. And until tonight, there 18 unanimously agree on the extended time frame which is an 19 has been nothing submitted in response to the chiefs 19 open-ended time fi'time. Isn't it impomant to get some 20 denial of that grievance that somehow there was some sow 20 testimony on that from both sides since it's been 21 of mutual agreement to verbally extend the time to file 21 specifically stated? That's the only evidence in front of 22 the grievance. 22 the council. That's the issue that's now in front of the 23 MR. MARKMAN: Let me ask you something. 23 council. If that's not the case, then shouldn't we take 24 MR. BERRY: May I interject? 24 evidence in why that's not the case? If the council 25 MR. MARKMAN: Let me ask counsel a question. 25 believes that's not the case, they might as well dismiss. Page 23 Page 25 I Mr. Filarsky, is it your position that no set of oral I What I suggest now is -- well, I suggest the council take 2 communications between the chief and the fire fighters 2 evidence on this issue, bifurcate it from the rest and see 3 association and Captain Berry could have constituted a 3 if this disposes of the matter or it doesn't. 4 waiver of the timeline, whether or not that exception 4 MR. FILARSKY: I have no objection to that 5 applies? 5 procedure if that's the way you prefer to go. 6 MR. F1LARSKY: Not quite. I'm suggesting that 6 MR. MARKMAN: lfthe council feels that 7 the parties could have specifically agreed verbally to 7 Mr. Filarsky is correct and you don't need further 8 waive the time frame to file a grievance; however, 8 inquiry, you can grant the motion. My suggestion would be 9 discussions of the issue, ongoing discussions, and 9 to bifurcate, take evidence on this issue at this time 10 postponement of the discussions of those issues does not 10 because we have at least a direct assertion which is in 11 constitute a waiver of the right to file a grievance. I 1 evidence by stipulation that such an agreement was made. 12 MR. MARKMAN: So isn't it important for us to get 12 MR. FILARSKY: Excuse me, you're misinterpreting 13 the evidence on what constituted those discussions and 13 my agreement that this come into evidence. I'm not 14 what they talked about? 14 stipulating by virtue of this letter -- 15 MR. FILARSKY: Unless they have got it in writing 15 MR. MARKMAN: No, no, no. I'm not suggesting 16 that there's a mutual agreement to waive filing the 16 that you stipulate that that's tree. I understand that. 17 grievance by six months, I don't think that they have to 17 l'm not suggesting to the council that the statement is 18 prove it. I think that you can make a decision based on 18 necessahly tree, all I'm suggesting is direct evidence on 19 what you've got before you as far as documentation. 19 this point that's in front of me. 20 Mr. Berry's own grievance said on May 30th, and in no 20 MR. FILARSKY: Thank you. 21 where does he address the grievance procedure and the 21 MR. MARKMAN: Is that clear to the council? I 22 reason there's been a delay in the grievance procedure. 22 obviously don't subscribe to the troth or not of any of 23 MR. MARKMAN: Captain Ben-y. 23 evidence in this. 24 MR. BERRY: Thank you, Mr. Markman. 24 MR. ALEXANDER: Well,just so 1, myself, 25 In Joint Exhibit 1, which is again in that gray 25 understand what -- you're not stipulating that the lettur 7 (Pages 22 to 25) M&M Court Reporters, lnc. 714-972-2300 877-472-2300 Page 26 Page 28 1 dated May 26th, 2003, is a true statement? 1 A I'm a retired steward for the union. 1 retired 2 MR. FILARSKY: Correct. 2 out with Tom's coming in, so I've been out for three or 3 MR. MARKMAN: The stipulation is that it can be 3 four months. 4 in front of you as evidence. Neither side has stipulated 4 Q Okay. Thank you. But you were in fact the shop 5 that any of these are all true in their contents. 5 steward - 6 MR. ALEXANDER: So either this can be set aside 6 A I was the shop steward during thc beginning of 7 and held or bifurcate or whatever we want to call it, and 7 this grievance. 8 we can continue on or the council can discuss whether 8 Q How long does that term last? 9 Mr. Filarsky's -- 9 A Two years. l0 MR. MARKMAN: His morion in front of you is to l0 Q So you were in fact the shop steward last year 11 dismiss for untimeliness, l I when this started? 12 MR. ALEXANDER: Right. 12 A Yes. 13 MR. MARKMAN: You can take that -- you can 13 Q Did you have any involvement with the processing 14 discuss that right now. lfyoudecidethathismotionwas 14 ofthisgrievance? 15 well-founded, you can grant it. My suggestion was to take 15 A Yes, l did. 16 evidence on the issue. 16 Q Could you explain your involvement, please? 17 MR. ALEXANDER: And I understand that. Out of 17 A When it was first brought to the shop, myself, we 18 fairness, we need to get that set, led. 18 had several meerings with the chief to discuss some of the 19 Council, which direction do you wish to go? 19 issues. We had at that time researched some oftbe 20 MR. KURTH: l think we should hear evidence on 20 historyasfarashowthepolicycameabout. Andafier 21 this issue. We have two people, both of whom I'm sure are 21 several meetings with the chief, because of other issues 22 honorable people, that have a difference of opinion on 22 that were happening at the time, some other grievances, we 23 what occurred. I think it's ~- if we're to make a 23 decided mutually to extend the time and not file a formal 24 decision, l think we have to hear the evidence on both 24 at that time. 25 sides. 25 Q Okay. You used the word "formal." What would Page 27 Page 29 I MR. ALEXANDER: Does anybody object to hearing 1 you refer to as that part of the grievance, that step that 2 evidence? 2 you just explained? 3 MS. WILLIAMS: No. 3 A Well, initially, there's the informal part of it 4 MR. ALEXANDER: Then we'll go ahead with the 4 where the parties would meet and try to come to some sort 5 procedure. 5 of agreement in the procedure; and at that time, both 6 MR. MARKMAN: Allright. What we will do now is 6 presenting both sides, asfaraswhattheybebevethe 7 ask Captain Berry to present his evidence limited to the 7 inteq~retation was. And we had several meetings going on 8 issue of timeliness at this time. 8 and finally came to a decision that there was not an 9 MR. BERRY: Thankyou. At this time l would like 9 agreeable outcome to the grievance. And ] believe it was l0 to call Mike Ploung to the -- to be a witness and we 10 on -- after a planning team meeting on June 19th that the 11 agreed -- 11 chief and I met and mutually agreed that because of some 12 MR. MARKMAN: Can we get him sworn in right here 12 of the other issues that were occurring at the time, that 13 while he's right in front of Kathy? 13 we mutually agreed to put a delay on pursuing this 14 MIKE PLOUNG, 14 grievance. 15 having been first duly sworn was examined and testified as 15 Q Did you have any other meetings at any time prior 16 follows: 16 to June 19th with the chief in referring to this subject? 17 DIRECT EXAMINATION 17 A Yes. 18 BY MR. BERRY: 18 Q Were you alone in those proceedings or were you 19 Q How are you doing, Mike? 19 accompanied by anybody else? 20 A Good. I like this chair. 20 A Most of the meetings, I was with the union 21 Q Feels powerful, doesn'tit? Please state your 21 president Sam Spagno]o; and on tbe l9th, Sam was absent, 22 name. 22 that was, again, after the planning team meeting. But 23 A Mike PIoung. 23 that had been discussed prior to the meeting on the 19th. 24 Q Please state your title in the association when 24 MR. BERRY: Thank you. Can I address the council 25 this grievance was filed. 25 at this time to make a point? (Pages 26 to 29) M&M Court Reporters, lnc. 714-972-2300 877-472-2300 Page 30 Page 32 I MR. MARKMAN: Well, except that Mr. Filarsky -- 1 ' negotiator for the union for ever since I was a little 2 if this witness is done with direct examination, 2 kid. And we wanted to get it resolved on this issue 3 Mr. Filarsky has cross-examination. 3 because it was going to have an impact on current 4 BY MR. BERRY: 4 negotiations. And we did not want this running into and 5 Q I would like to just simply state for the record 5 overlapping when trying to deal with negotiations. We 6 thatagaln, exhibit6, page20atthetopittalksabout 6 wantud this resolved as early as possible, butwe 7 objectives. And is that what you're referring to when 7 understood the position of the chief, and that there was 8 you're talking about the informal? 8 some concerns on his behalf, so we agreed to that. But we 9 A Yes. At -- there was some confusion, strangely 9 wanted this resolved before we ever got started in the I 0 enough, for quite some period of the time who the 10 current negotiations. 11 personnel director for the fire department was. And after 11 Q Great. At the time, Mike, of the verbal 12 looking at procedures, the fire chief is, in fact, the 12 agreement between the association and the fire district, 13 personnel director for the fire department. And had an 13 was there any reason to believe the fire district would 14 agreement with the chief, we thought there was no need ~o 14 not honor this agreement? 15 have a written agreement from Larry on behalf of the city 15 A Honor the agreement as far as the interpretation 16 because we were dealing with the personnel director oftbe 16 of the language? 17 fire dc=par{anent. 17 Q No, just honor your agreement -- 18 Q Verygood. Mike, so slmply stated -- this is 18 A No. 19 going to sound redundant, but I am going to ask it anyway. ]9 Q -- of extending it? 20 Was there an agreement between the association and the 20 A No. In fact, l mentioned to the chief a number 21 fire district to postpone an advance on this grievance? 21 of times my concern about delaying it as long as we had 22 A Yes, there was. 22 because of negotiations coming up and we didn't want that 23 Q Thank you. Why? 23 to follow theissue. 24 A Because of some other issues that were more 24 MR. BERRY: Thank you. I have no further 25 pressing and because of some of the time constraints that 25 questions at this rime. Page 31 Page 33 1 we had and resolving some oftbe other issues. I MR. MARKMAN: Cross-examination, Mr. Filarsky? 2 Q Okay. Thank you. Who from the fire district 2 CROSS-EXAMINATION 3 agreed to hold off on advancing the grievance? 3 BY MR. FILARSKY: 4 A The chief was the one that originally requested. 4 Q Sir, is there anything in writing or evidence of 5 Q The chief, the fire chie~ 5 this so-called mutual agreement? 6 A Yes. 6 A No, there is not. 7 Q The fire chief, Chief Michael? 7 Q Any E-mails that took place back and forth 8 A Yes. 8 between the parties evidencing this mutual agreement? 9 Q Okay. Thank you. Okay. Mike, has the 9 A No, there is not because that would be a 10 association and the lire district had verbal agreements in 10 violation of the E-nmil policy. I 1 the past to hold off on tiling of grievances? 11 Q Dealing with department business would be in 12 A Multitude of times. Sometimes there are just a 12 violation of E-mail policy; is that your position, sir? 13 lotofissuesthatarepressing. Sometimes there% a lot 13 A lfE-rnail- 14 of things going on in the organization as far as whether 14 Q Answer yes or no, sir. 15 it's a promotional test or whether it's hiring people. 15 A Repeat the question, please. 16 It's quite common that we have an agreement with the chief 16 Q Sure. Dealing with department business would be 17 t~ postpone some things in work, it mutually works for the 17 a violation of the E-mail policy; is that your position? 18 union also.. 18 A I'll deny, unless ] have the opportunity to 19 Q So you would consider this as a common practice? 19 further explain the policy. 20 A Yes. 20 Q This wasn't the only grievance that the 21 Q Okay. Thank you. Mike, who benefited from the 21 department raised the issue of timeliness within the year 22 delay? Was it the association or the fire district? 22 of 2002, was it? 23 A Actually, I believe -- trying to analyze it 23 A The department did not raise an issue of 24 myself, I believe the fire department was benefitting from 24 timeliness; the department chief had come and asked for 25 it, not the union because the union -- 1 had been the 25 cooperation on behalf of the union to extend various 9 (Pages 30 to 33) M&M Court Reporters, Inc. 714-972-2300 877-472-2300 Page 34 Page 36 1 'g~evances. I MR. MARKMAN: Mr. PIoung -- before you read -- it 2 Q Let me try the question again, Mr. PIoung. This 2 will move faster if you answer the questions that he 3 was not the only grievance during 2002 in which the chief 3 poses. You'll have an opportunity to be re-examined and 4 raised the issue of timeliness; is that correct? 4 there is reconstruction to occur on redirect. So please, 5 A No. 5 that was another yes or no. 6 Q What's not correct? 6 Why don't you read the question. 7 A The chief did not bring up the issue of 7 MR. BERRY: Mr. Markman, it's my understanding 8 timeliness, he brought up the issue of extending the time. 8 that Mr. P]oung has answered the question, but he hasn't 9 Q You read the chiefs response in December of 9 answered the question to Mr. Filarsky's -- 10 2002, haven't you? 10 MR. MARKMAN: Well, I don't think he's answered I 1 A That was not the chief's response. 11 the -- Captain Ben'y, I don't think he answered that 12 Q Have you had a discussion with the chief in which 12 question. I think he's trying to explain himself instead 13 he indicated that that was not his position? 13 of answering the question. 14 A He never indicated that he had a problem with the 14 Why don't you read that question back. 15 time expansion, the time to settle the grievance, that was 15 (Record read.) 16 his desire. 16 THE WITNESS: There was not a discussion with the 17 MR. FILARSKY: Mr. CityArtorney, l ask the court 17 chiefal~erthatbecauseitwasunderstoodthatthe 18 reporter to read the question and instruct the witness to 18 extension was acceptable. That's my answer. ]9 answer the question. 19 BYMR. FILARSKY: 20 (Record read.) 20 Q Did you or anybody else in the fire association 21 MR. MARKMAN: Calls for a yes or no answer. 21 write to either Mr. Rivera or to the fire chief after 22 THE WITNESS: Repeat that again, please. 22 reeeipt of this memo indieating that their position on 23 (Record read.) 23 timeliness was wrong because you had this so-called mutual 24 THE WITNESS: 1 don't understand what you're 24 agreement? 25 saying by that not being his position. 25 A At that point -- Page 35 Page 37 I MR. MARKMAN: Why don't you ask another question, 1 MR. MARKMAN: That's another one you can answer 2 Mr. Filarsky. 2 yes or no, Mr. PIoung. 3 BY MR. FILARSKY: 3 THE WITNESS: Well, Tom was the steward at that 4 Q You received a copy of the exhibit number 3 in 4 time. 5 which the chief's name is attached and it indicates the 5 BY MR. FILARSKY: 6 grievance isn't timely; is that correct? 6 Q Mr. PIoung, my question was whether you or anyone 7 A I received a copy, yes. 7 else in the association wrote the chief or Mr. Rivera 8 Q You read it, didn't you? 8 after receipt of this December 26th memo? 9 A Yes. 9 A No. l0 Q And when you read it, did you take it to mean 10 Q Okay. Is it your testimony that the fire chief I ] that the chief was contending that your grievance, or the 11 specifically told you that he would agree that you could 12 grievance of the association, Mr. Berry specifically, was I2 file a formal grievance concerning tuition reimbursement 13 untimely? 13 at any time? 14 A The time stamp and the name was not the chief, it 14 A He stated that he desired to postpone trying to 15 was done by George. 15 resolve this, and that it -- it was mutually agreed upon 16 Q Did you ever have a discussion with the chief 16 by the union and the chief. 17 after you read this in which he disavowed this memo and 17 Q Did he specifically tell you that you could delay 18 essentially said, 1 don't agree with that, that's all 18 filing a formal grievance until the time - 19 Mr. Rivera? 19 A Specifically as far as stating formal, no. 20 A The chief never discussed any problem with the 20 Q Getting back to an earlier question which still 2l extension of time. 21 has not been answered. In the year 2002, the fire 22 MR. FILARSKY: Once again, I ask the court 22 department denied at least one other grievance for 23 reporter to read the question and instruct the witness to 23 timeliness; is that correct, other than this one? 24 answer that question that is asked. 24 A Why don't you let me know what the grievance is? 25 MR. BERRY: Objection. 25 Q Concerning an individual who filed a grievance 10 (Pages 34 to 37) M&M Court Reporters, lnc. 714-972-2300 877-472~2300 Page 38 Page 40 I related to a first grievance. Does that help you out any, 1 MR. FILARSKY: No, sir.. 2 does that ring any bells? 2 THE WITNESS: Any member of the council now has 3 MR. MARK. MAN: This isn't helping the council 3 an opportunity to question this witness if you wish to. 4 much. 4 MR. ALEXANDER: Is there anyone who would like to ~ MR. FILARSKY: ! understand. 5 question Mr. PIoung? 6 THE WITNESS: Kind of ambiguous. 6 MR. HOWDYSHELL: We are restricted to the 7 BY MR. FILARSKY: 7 timeliness issue? 8 Q Do you recall - oh, let me backtrack here. 8 MR. MARKMAN: At this point, yes. He can be 9 There were originally four grievances for four different 9 recalled if this goes through. Thank you. l0 actions set for hearing before this board of directors; is 10 You have another witness, Captain Berry? J 1 that correct?' 11 MR. BERRY: Mr. Markman, Mr. Ploung's testimony 12 A That'~ correct. 12 and the Grievant Exhibit ] is what I have to offer for the 13 Q And three of them were resolved and dismissed; is 13 timeliness issue. 14 that correct? 14 MR. MARKMAN: Thank you. Mr. Filarsky, you want 15 A Correct. 15 to present evidence on this point? 16 Q In one of those do you recall the department 16 MR. FILARSKY: Yes. Call Chief Dennis Michael. 17 denying the grievance based on timeliness? 17 DENNIS MICHAEL, 18 A The resolutions to the three grlevanees were not 18 having been first duly sworn was examined and testified as 19 put down because of timeliness, they were agreed upon -- 19 follows: 20 resolved by mutual agreements, they were not done for 20 DIRECT EXAMINATION 21 timeliness. 21 BY MR. FILARSKY: 22 Q Mr. Ploung, in the department's response to any 22 Q Sir, would you please state your full name for 23 of those three grievances that were ultimately resolved, 23 the record. 24 do you recall the department in one of those cases raising 24 A Chief Dennis Michael, Ere chief. 25 the issue of timeliness? 25 Q And how long have you been the chief, sir? Page 39 Page 41 1 A They did raise the issue of timeliness; however, 1 A Eighteen years. 2 that was not the cause oftbe resolution of the grievance. 2 MR. MARKMAN: Having a hard time hearing thc 3 MR. FILARSKY: No further questions. 3 chief over here. 4 MR. MARKMAN: Captain Berry, you can reexamine. 4 THE WITNESS: Oh, lamsorry. A little over 18 5 REDIRECT EXAMINATION 5 years. 6 BY MR. BERRY: 6 BY MR. FILARSKY: 7 Q Mike, after receiving the response from 7 Q I want to show you an exhibit which is exhibit 3, 8 Mr. Rivers, what is the next step in the grievance 8 please. Are you familiar with that exhibit~ sir? 9 procedure? 9 A Yes, l am. 10 A The next step, you mean afier being denied by the 10 Q And you've heard testimony that you did not issue 11 chie~ 11 that exhibit; is that correct? 12 Q Yes. 12 A No, it wasn't issued by me, but I did see it. 13 A This is thc ncxt stcp. 13 Q Didyouseeitbeforeitwasissued? 14 Q Okay. Thank you. Also, the grievances that 14 A 1 don't recall that. 1 $ Mr. Eilarsky was referring to, were they resolved? l $ Q ]Did you see it after it was issued? 16 A Tbe gricvanccs wcrc rcsolvcd and put to rest by 16 A Yes. 17 both thc administration and the union, i 7 Q And did you agree with the statement asserted by 18 Q Thank you. And so there was no need -- lg Mr. Rivera concerning timeliness? 19 A No. 19 A Yes. 20 Q - to advance the grievances, and so timeliness 20 Q And was it issued by Mr. Rivera because you were 21 really was not an issue? 21 out of town on vacation during that period of time? 22 A No. 22 A That may have been the case, [ don't recall. 23 MR. BERRY: Thank you. No f~rtber questions. 23 Q And the district has time limits that it has to 24 MR. MARKMAN: Mr. Filarsky, do you have anything 24 adhere to with respect to the grievance procedure; is that 25 further? 25 correct? 11 (Pages 38 to41) M&M Court Reporters, inc. 714-972-2300 877-472-2300 Page 42 Page 44 I A Yes. I understanding of what we would do to resolve their concern 2 Q By the way, during the year 2002, was there 2 over the tuition reimbursement issue. 3 another grievance in which you dismissed it or found that 3 Q Do you have discussions, informal discussions of 4 it was untimely that you can recall, aside from this one? 4 this nature concerning other topics with members of the 5 A I recollect an issue being addressed on 5 association on an ongoing basis? 6 timeliness, I'm not sure specifically which grievance it 6 A Please restate your question. 7 was at that time. 7 Q Sure. You indicated that you had some 8 Q Now, once you saw this particular memorandum, did 8 discussions with members of the association concerning 9 you have any conversations with anybody in the fire 9 tuition reimbursement to try resolve this issue? 10 association in which they alleged that you had, in l0 A Yes. I 1 essence, misrepresented an agreement to extend th~ time to I 1 Q Are there other issues that arise in the course 12 file a formal grievance? 12 of the year that you had similar discussions with the 13 A ARer this wasissued? 13 association? 14 Q Yes, sir. 14 A Yes. 15 A No. 15 Q Do you distinguish those discussions from the 16 Q Did anybody in the association come up to you and 16 normalgrievance procedure? 17 say words to the effect, how can you put your name on a 17 A Yes. 18 memo like this when we had a mutual agreement to extend 18 Q Now, during these discussions that you had with 19 the grievance filing? 19 the tuition reimbursement issue, did you ever agree with 20 A No. 20 anybody in the association that they had an indefinite 21 Q In the year 2002, from May until December of 21 amount of time to file a formal grievance procedure 22 2002, did you ever agree to extend the time to file a 22 pursuant to the memorandum of understanding the grievance 23 formal grievance on behalf of Mr. Berry concerning tuition 23 procedure? 24 reimbursement? 24 A It was my understanding during that period of 25 A I don't really recall the issue of formal versus 25 time that we were doing a meat-and-confer discussion with Page 43 Page 45 1 informal. What I do recall, if I may? I administrative services, that is signatory - 2 Q Sure. 2 MR. MARKMAN: Canwegetayesornoanswerto 3 A l recall having -- 3 that last question? Would you read that back please. 4 MR. MARKMAN: You know, ! think he's -- in 4 Chief, I think this asks for a yes or no. 5 fairness to Captain Bem~,, 1 think this should be a 5 (Record read.) 6 question-and-answer process for the chief. I think you 6 THE WITNESS: I don't recall that. 7 should be able to elicit the testimony by asking 7 BY MR. FILARSKY: 8 questions, otherwise he can't keep track. 8 Q Do you distinguish the meet-and-confer process as 9 MR. FILARSKY: Sure. 9 being something different than the grievance process? 10 MR. BERRY: Thank you, Mr. Markrnan. 10 A Yes. 11 BY MR. FILARSKY: Il MR. FILARSKY: No further questions. 12 Q Sir, what do you recall of your initial 12 MR. MARKMAN: Captain Berry, you have an 13 discussions concerning the tuition reimbursement issue? 13 oppor~nity to cross-examine the chief. 14 A I recall being approached by the union of the 14 CROSS-EXAMINATION 15 concern of Captain Berry needing to reimburse his tuition 15 BY MR. BERRY: 16 overpayment regarding tuition, and a concern over the 16 Q How are you doing, Chief?. 17 language in the MOU. What I do recall is that those 17 A Fine. ! 8 discussions that they indicated that they ha~i with me were 18 Q With all due respect before 1 start, sir -- in 19 a part ora meet-and-confer process with thc 19 reference to the document in exhibit 3, generally when 20 administrative services director, Angela Rivers, back in 20 somebody else issues a memo, do you.initial that? Do you 21 May 0fthis last ~ar. 21 read that before it goes out? Let me restate that. Do 22 I recall several months where there was 22 you read the memos that are issued by people in your name? 23 discussionsoccun~ng, and then there was a lapse ofa 23 A Generally speaking, yes. 24 long period of time because numbers were provided to two 24 Q When you read those memos, how do you know -- how 25 different parties in an effort to come to some reasonable 25 do we know that you have? 12 (Pages 42 to 45) M&M Court Reporters, lnc. 714-972-2300 877-472-2300 Page 46 Page 48 I A They arc usually initialed. I saying anything and allowing meetings to occur? Normally 2 Q They are initialed. 2 would you say, this issue is over, timeliness is a factor, 3 A Or signed. 3 we are no longer hearing any more? We're not having 4 Q Where would that initial be? 4 anymore conversations about this? 5 A To the right of my name or at the bottom of the 5 MR. FILARSKY: Objection, vague and ambiguous. 6 page. 6 MR. BERRY: I can reword that. 7 Q Do you see that exhibit- 7 MR. MARKMAN: Please. 8 A No. 8 BY MR. BERRY: 9 Q - that I'm referring to? 9 Q If timeliness is an issue, would you continue to i 10 A Yes, 1 see. 10 meet on this sameissue? . I 1 Q Do you see your initial on there? II A No. 12 A No. 12 Q Thank you. Chief Michael, were you in meetings 13 Q I don't either. So, Chief Michael, does 13 on November 26th exchanging dialogue about this issue? 14 Mr. Rivers have the authority to issue memos without your 14 A I don't recall that. 15 knowledge? 15 Q In Mr. Temple's office? 16 A In this particular case, I believe so. This was 16 A Yes, I recall meetings w/th Mr. Temple, George 17 a discussion -- 17 Rivera, yourself, and Mike Ploung, but I don't recall the 18 Q Yes or no, please. 18 date. 19 A Yes. 19 Q Okay. Let me refresh your memory, it was 20 Q He does have the authority to issue memos without 20 November 26th, 2002. Do you remember-- do you recall 21 your knowledge? 21 having a meeting in Mr. Temple's office also on December 22 A Yes. They were involved in that process, yes. 22 10th, 2002? 23 Q So it would be prudent to say that he had the 23 A ldon'trccalltbodatc, botlrccal]several 24 authority to issue memos without your permission? Yes or 24 meetings with people dealing with tuition reimbursements. 25 no. 25 Q So it would be prudent to say that these meetings Page 47 i Page 49 I A In matters of personnel matters in his position, I occurred six months after? 2 in administrative services, and thc fact that he was doing 2 A Six months al%r? 3 the negotiations, yes. 3 Q The May 30th date, about. 4 Q Did you read this memo before it went out? 4 A There was a very lengthy lapse between May and 5 A I don't recall. 5 December when these discussions restarted after numbers 6 Q But you just - you earlier stated that when you 6 were gathered and information was shared. 7 do read them, you initial them? 7 Q Just one more date, sir, actually two more dates. 8 A Yes. 8 We had another meeting scheduled for December 17th, but 9 Q So would it be prudent to say then that you did 9 unfortunately you had an unfortunate incident in your l0 not read this memo before it went out? There is no 10 family and you could not make that meeting. Do you recall 11 initial. II that in December, your death? 12 A I don't recall that, Dave. 12 A I recall my father-in-law died. 13 Q Thank you. Chief Michael, what is the next step 13 Q That was December 17th that we were scheduled to 14 to the grievance procedure when the grievance has been 14 have that meeting and it was cancelled because of that 15 denied? 15 incident, I'm sorry to say. However, that meeting was 16 A By whom? 16 rescheduled for December 18th. Do you recallthat? 17 Q Byyourselforyourstaff? 17 A l don't rccall the date. ldon'trcmembcrwhatI 18 A If it's denied by thc fire chief, then thc next 18 was doing December 18th. 19 step is to move forward with the grievance board of 19 Q Then in - 20 directors. 20 A I recall -- if December 18th -- 21 Q Would you say that's where we are at today? 21 MR. MARKMAN: Chief, there's no question. 22 A Yes. 22 BY MR. BERRY: 23 Q Chief Michael, if timeliness was an issue, would 23 Q Chief in exhibit 1, there's an employee grievance 24 that be something that would have been brought up early on 24 form. On it, the employee grievance form, do see it is 25 or would you have allowed talks to continue on without 25 stamped received. Could you read that date, please? 13 (Pages 46 to 49) M&M Court Reporters, lnc. 714-972-2300 877-472-2300 Page 50 Page 52 1 A December 18th, administrative services. 1 THE WITNESS: The 15 day time limitation? 2 Q Thank you. This is, in fact, the date that we 2 MR. KURTH: Yes. Why would you go on to have 3 had the last meeting and the grievance- 3 meetings atter that time limit was up? 4 A No. 4 THE WITNESS: The time limit of the grievance -- 5 Q - was formally issued to you. If I could 5 the formal grievance was issued to the district on 6 continue sir, please. This is when the formal grievance 6 December 18th, it was dated December 17th, we received it 7 was issued to you. Do you recall that? 7 on December 18th, that was the formal grievance. Prior to 8 A Yes. 8 that time, we were in discussions, informal discussions, 9 Q In Mr. Temple's office I handed it to you and it 9 about trying to resolve the dispute over the 15004ollar l0 was effectively received at that time. You said earlier l0 maximum tuition reimbursement. We were trying to come up 11 that, in fact, if timeliness was a factor, you would I I with numbers, associating with the union, their numbers 12 stop -- you would not have dialogue about this issue; 12 from various investigation they did with various colleges; 13 however, these dates show that you had not one, not two 13 George Rivers on behalf of the district did his research. 14 but three meetings about this same issue long after 14 There were differences in the opinion in the amount of 15 Mr. Filarsky claims that the timeliness was an issue. 15 compensation due for tuition reimbuvsen~nt. 16 MR. FILARSKY: Objection. Argumentative and 16 There was an offering of a settlement that was 17 Mr. Berry is testifying. 17 approved by the city manager to otter a settlement. And 18 MR. BERRY: I'm simply stating a fact. 18 in that last meeting, the statement was, we agreed -- we 19 MR. MARKMAN: l didn't squeeze out of that 19 offered a settlement and thc comment was by Mr. Berry, and 20 statement a question. If you can rephrase it in the form 20 rightly so, it's his right, that a contract is a contract 21 of a question. 21 is a contract and either you honor it or you don't, and we 22 MR. BERRY: It was a statement, sir. 22 don~ agree to the settlement and handed at that point the 23 MR. MARKMAN: Well, we didn't -- right now, it's 23 grievance. 24 just questions. 24 May 30th was the date that he was told to 25 MR. BERRY: Okay. l'm new at this. 25 reimburse the district the ove~oayment of$350. Andthat, Page 51 Page 53 1 BY MR. BERRY: 1 in fact, was the time that we entered into discussions. 2 Q So, in fact, Chief Michael, did you have meetings 2 And the discussions with myself, Lar~ Temple, and George 3 after on ll/26,12/10, and12/18 about this issue? 3 Rivera regarding the language as it is identified in the 4 A The group of us met-- 4 MOl3 under tuition reimbursement. 5 Q Yes or no, sir. 5 MR. ALEXANDER: Anybody else have a question? 6 A Yes, we had meetings. 6 MR. MARKMAN: Thank you, Chief. Do you have 7 MR. BERRY: No further questions. 7 another witness, Mr. Filarsky? 8 MR. MARKMAN: Redirect, Mr. Filarsky. 8 MR. BERRY: Can l ask tbe chiefa question? 9 MR. FILARSKY: No, sir. 9 MR. MARKMAN: No, it's too late. 10 MR. MARKMAN: Any further evidence on your part l0 MR. BERRY: Council brought up the question. I1 Mr. Filassky. II MR. MARKMAN: Wait a minute. Chief, youwantto 12 MR. FILARSKY: Yes, sir. 12 return to the stand a minute. Captain Ben3, -- I think 1 13 MR. MARKMAN: Council has an opportunity to ask 13 made an error. Captain Berry wants to examine post the 14 questions. 14 councit'squestioning. I think he's entitled to do so. 15 MR. ALEXANDER: Just to elucidate a yes or no 15 Go ahead, sir. 16 answer only. If there were other meetings, was it simply 16 RECROSS-EXAMINATION 17 to attempt to resolve a difficult issue? 17 BY MR. BERRY: 18 THE WITNESS: Yes. 18 ' Q Chief, you stated that if the grievance was 19 MR. KURTH: Are we allowed to ask questions? 19 untimely that you would stop dialogue about the issue. 20 MR. MARKMAN: Yes, you may at this point in time. 20 You have just stated - just for the record, I would like 21 MR. KURTH: Maybe you could explain what was 21 for you - did you offer a settlement on this issue on 22 going on if you were having meetings, yet you say it was 22 December 18th? 23 after the expiration date. 23 A Yes, there was a sealement that was offered. 24 THE WITNESS: Expiration date of?. 24 Q If it was untimely, would you have offered that 25 MR. KURTH: Well-- 25 settlement? 14 (Pages 50 to 53) M&M Court Reporters, Inc. 714-972-2300 877-472-2300 Page 54 Page 56 I A Wewemn'tintheissueofagrievanceatthat 1 MR. MARKMAN: I don't think that tbe offer of 2 point in time. 2 settleroent is relevant, and I think that I wouldn't force 3 Q i'm sorry? 3 an answer to that. It's up to the council. 4 A There is a separate issue of discussion. This 4 · MR. KURTH: I have a question for the city 5 wasn't an issue -- those discussions were not part of the 5 attorney. Why do you think it's not relevant? 6 grievance process. 6 MR. MARKMAN: Because I don't think offers that 7 Q But, in fact, you did offer a settlement on that 7 rejected or counter offers during settlement discussions 8 date? 8 help you or are pertinent to deciding the issues in front 9 A Yes. 9 of you. And normally speaking, that kind of evidence and 10 Q Chief, you stated that the board is a contract is 10 those kind of things are not admissible in any court 11 a contract was made. If it's not a contract, why would 11 proceeding so that people can approach settlement 12 you try to settle? . 12 discussions candidly without having what they said or what 13 MR. FILARSKY: Objection. That's argumentative 13 they offer repeated in the proceeding, which is exactly 14 and it goes beyond the issue of the timeliness of the 14 what would happen here. 15 grievance. 15 MR. EAGLESON: If ] may, the chief brought up the 16 MR. MARKMAN: l frankly don't understand the 16 fact that the settlement was offared. We are not asking 17 question. 17 what was the settlemant. The question is, if this was 18 BY MR. BERRY: 18 untimely, why would you offer a settlement anyhow. 19 Q The question is, if the issue of the grievance is 19 MR. MARKMAN: Okay. Counsel, 1 disagree. He 20 untimely, why would there be a settlement offer so far 20 already answered that question. The specific question he 21 out? The fact of the matter is -- 21 just asked wes what was thc substance of the settlement. 22 MR. MARKMAN: So what you're suggestion is that 22 That's why l'm sustaining the objection. Is that you're 23 you can't retain the defense of timeliness and still try 23 understanding, Mr. Filarsky? 24 to settle. 24 MR. FILARSKY: Yes, sir. 25 MR. BERRy: No. Well, it appears so. 25 MR. MARKMAN: You have more questions? Page 55 Page 57 1 MR. MARKMAN: So you can't retain a defense of I MR. BERRY: No, sir. 2 untimeliness and still try to settle? 2 MR. ALEXANDER: Hold on Diane. Okay. 3 MR. BERRY: Mr. Rivera -- 3 MS. WILLIAMS: Chief Michael, I have a question. 4 MR. MARKMAN: I'm just trying to understand you. 4 fm not sum how to ask the question. You stated then 5 MR. BERRY: Yes. Mr. Rivera stated that it was 5 that the grievance situation was. separate and apart from 6 untimeIy, yet six months or five months -- 6 settlement discussion, so -- and I think you can answer 7 MR. MARKMAN: Oh, 1 understand. 7 this yes or no. So the se~lement discussions were just 8 MR. BERRY: -- al~erwards, here we are in talks 8 in an effott to perhaps keep a grievance from occurring, 9 again and a settlement is trying to be reached. But yet, 9 and then once the settlement was refused, then the l 0 in their response to the chiefs response -- 10 grievance discussion began, again? You're jumping from I 1 MR. MARKMAN: Okay. Where you're going here is 11 discussion to discussion from what I'm understanding. You 12 your closing argaments. 12 set the separate discussion, one was discussing the 13 MR. BERRY: Okay. 13 setllement and it was refused. Then the gficvance 14 MR. MARKMAN: Why don't you go back to 14 procedure began. 15 questioning the chief if you have more. 15 THE WITNESS: For some time we were meeting in 16 BYMR. BERRY: 16 good faith to try to resolve some ambiguity in language. 17 Q Chief, what did the settlement represent? 17 MS. WILLIAMS: But that was regarding settlement? 18 MR. FILARSKY: Objection. Ifs ircelevant and it 18 THE WITNESS: Trying to come to some agreement. 19 doesn't go to the issue of timeliness. 19 MS. WILLIAMS: So then the grievance situation 20 MR. BERRY: ]t's timeliness. And relevancy, l 20 began upon the refusal of a settlement or the settlement 21 believe roles of evidence do not apply in this type of a 21 issue is now dead and gone so then thc grievance procedure 22 hearing. 22 began? 23 MR. MARKMAN: Well, they don't apply, but then 23 THE WITNESS: Yes. 24 I'm forced to -- you want to read the question hack. 24 MR. BOWDYSHELL: l havea question. This is more 25 (Record read.) 25 just a process. Are you the personnel director for the 15 (Pages 54 to 57) M&M Court Reporters, Inc. 714-972-2300 877-472-2300 Page 58 Page 60 1 fire district? I THE WITNESS: Probably sometime after May 30th. 2 THE WITNESS: The personnel di~ctor is, I 2 MR. KURTH: How would the applicant know that 3 believe, the city manager and he delegates that grievance. 3 this issue was an unresolved issue if there was still 4 But that wasn't made determined -- that actually wasn't 4 negotiations going on? 5 detennined until later on this year when we were 5 THE WITNESS: I don't know that the applicant 6 processing all the grievances. Before that, I'd always 6 would know that because we were in discussions between 7 understood it to be the administrative services director. 7 administrative services and the fire district and the 8 MR. HOWDYSHELL: The classes that we're referring 8 union; and that's what I understood those periods of time 9 toinbere, isthereanexustothejob? Aretbey 9 to be to try to resolve the concarn in the MOU and their 10 job-related? What's -- 1 don't know what the requirements 10 assertion that the $1500 should be inflated over and above 11 are. What kind of classes are we talking about? 11 what it was in the MOU, per their interpretation 12 THE WITNESS: These classes would be in pursuit ] 2 MR. KURTH: So there's no -- there's no time that 13 of a degree program as stated in the language. 13 he could have -~ he could have known? 1 mean, if there's 14 MR. ALEXANDER: That's not your question, is it? 14 still discussions -- maybe I'm not putting this fight. 15 THE WITNESS: The course work - 15 The question is, it seems to me that the person -- 16 MR. HOWDYSHELL: So any class is acceptable in 16 MR. MARKMAN: John, let's reserve -- I don't like 17 the pursuit ofa degree? 17 to tell tbe council what to do. Ifyouwanttoponder 18 THE WITNESS: As long as it's approved by a 18 problems, that'snotaqeestion. We need to get the 19 supervisor. 19 evidence and then you can -- they can argue and you can 20 MR. HOWDYSHELL: So the classes are all approved 20 discuss what's bothering you. If you have a question for 21 in an advance? 21 the chief, that's another sorry. 22 THE WITNESS: Yes. 22 MR. KURTH: Well, my question, again, I don't 23 MR. HOWDYSHELL: So we know the cost of those in 23 know that I got -- how would you know that this wasfft 24 advance upon their being approved? 24 resolved if there was still discussions going on? 25 THE WITNESS: We don't necessarily know the cost 25 THE WITNESS: There was a cone, ere that there was Page 59 Page 61 1 of those in advance. We have, according to the MOU, the I a reimbursement made back in May. The concern was brought 2 employee has up to $1500 according to current language to 2 forth in May, I believe, it was May. We entered into 3 spend per year. 3 discussions with the union in order to attempt to resolve 4 MR. BERRY: Objection. That's what we're trying 4 the dispute in the language and them was a long period of 5 to establish, that's not necessarily the case. 5 time. So as far as the grievance and tbe timeliness 6 MR. MARKMAN: 1 don't know how to sustain your 6 issue, it related back to -- I know that we talked about 7 objection because he's answering the question posed by the 7 extensions, and there was that issue that was raised 8 member of the council. 8 earlier; but in my recollection, the majority oftbe 9 MR. BERRY: 1 understand that. 9 discussions were one of sitting down at the table and 10 MR. MARKMAN: They can overrule. I 0 meeting and conferring to attempt to resolve the issue and 11 MR. ALEXANDER: I think the council is smart I 1 that's what our goal was, that was our objective. 12 enough to understand exactly where he's coming from. 12 MR. KURTH: Okay. 1 have no further questions. 13 MR. HOWDYSHELL: That's all the questions I have. 13 Thank you. 14 MR. ALEXANDER: And you had another question, 14 MR. MARKMAN: Any other questions from the 15 Mr. Kurth? 15 council? 16 MR. KURTH: Yes. Chief, when woutd this -- what 16 MR. ALEXANDER: I don't believe so. 17 weYe talking about is exhibit one was not filed in a 17 MR. MARKMAN: It's Mr. Filarsky's tam again. Do 18 timely manner; is that correct? 18 you have anymore? 19 THE WITNESS: I don't have the exhibit. 19 MR. FILARSKY: Yes, sir, 1 do. 20 MR. MARKMAN: Joint Exhibit 1, that is correct. 20 REDIRECT EXAMINATION 21 THE WITNESS: That is, in fact, the document that 21 BY MR. FILARSKY: 22 is being represented that it was not filed in a timely 22 Q In response to Council Member Kurth's question, 23 basis for the purposes ofwhnt we're discussing. 23 was Mr. Berry required to reimburse the city for an 24 MR. KURTH: When should that have been filed to 24 overpayment on May 30th, 2002? 25 have been done in a timely manner? 25 A That's when the reimbursement was made according 16 (Pages 58 to 61) M&M Court Reporters, Inc. 714-972-2300 877-472-2300 Page 62 Page 64 1 to thc records. I A Thc ones I recall were all at the formal level. 2 Q At that point in time did Mr. Berry have the 2 Q Bow many? 3 ability to file a grievance contending that that 3 A At the formal level? 4 reimbursement was a violation of the MOU? 4 Q Informal. 5 A Yes. 5 A The ones I recall in the last year have all been 6 Q Did h~ have the ability to file a grievance 6 at the formal level. 7 within the following 15 days to contend that that ? Q Have you handled grievances at the informal 8 reimbursement was in violation of the MOU? g level? 9 A Yes. 9 A Yes. 10 MR. FILARSKY: No further questions. 10 Q Yes. How many? 11 MR. MARKMAN: Captain Berry. 11 A 1 don't recall. 12 MR. BERRY: Yes, I do have another question. Can 12 MR. ALEXAHDER: He statedthat several timcs now. 13 1 have a moment? 13 That stilt answers it, I don't recall. 14 RECROSS-EXAMINATION 14 MR. BERRY: Okay. No further questions. 1 $ BY MR. BERRY: 15 MR. MARKMAN: Mr. Filarsky, anything further? 16 Q Chief Michael, could you explain or just simply 16 MR. FILARSKY: No, sir. 17 state the first step of the grievance procedure? 17 MR. MARK.MAN: Council. Thank you, Chief. You 18 A The first step is that most grievances can be 18 have another witness, Mr. Filarsky? 19 resolved informally with their immediate supervisor. 19 MR. FILARSKY: Yes, sir. 20 Q Thankyou. ln this situation are you my 20 MR. MARKMAN: Is this going to be your last 21 immediate supervisor? 21 witness? Iim trying to figure out when to take a break. 22 A No. 22 MR. F1LARSKY: Yes, sir. 23 Q Okay. Was the grievance brought to you though? 23 MR. MARKMAN: Okay. Let's go forward. 24 A Thc concern was brought to me, yes. 24 MR. ALEXANDER: While Mr. Rivera is being sworn 25 Q Would you consider this issue to be "grieveable" 25 in, please advise the council and anyone else as to who to Page 63 Page 65 1 with my immediate supervisor? 1 talk to and what to do at any time during the break. 2 A No. 2 MR. MARKMAN: Let's do that right now. Council 3 Q Okay. Thank you. Have you ever settled concerns 3 should not discuss this with anybody here or even amongst 4 of similar matters before the formal grievance process 4 yourselves on break, please, because this is a 5 takes place? $ quasi-judicial proceeding, and we want to proceed that 6 A Yes. 6 way. And I think that's the only thing you need to 7 Q What would you consider being the formal 7 remember. 8 grievance process? 8 MR. ALEXANDER: Okay. 9 A The formal grievance process would be that which 9 GEORGE R1VERA, 10 the grievant feels that they have not had resolution to 10 having been first duly sworn was examined and testified as 11 their concern to a satisfactory degree. 11 follows: 12 Q Is there a document that we would use in the 12 DIRECT EXAMINATION 13 event that that informal process was not resolved? i3 BY MR. F1LARSKY: 14 A Yes. 14 Q Sir, would you please state and spell your full 15 Q Do you have an exhibit in front of you? 15 name for the record. 16 A Exhibit 1. 16 A My name is George Rivera. I'm the administrative 17 Q No, sir. Yes, sir. Could you turn to exhibit l? 17 serviees manager for the cit~. 18 A That's the form. 18 Q And how long have you held that position, sir? 19 Q Is that the form? 19 A Five years. 20 A (No audible response.) 20 Q And how long have you been involved in public 21 Q How many times, let's say in the last year, have 21 director relations, sir? 22 grievances been handled at the informal level? 22 A Approximately 16 years. 23 A l don't recall. 23 Q Are you involved in the meat-and-confer process 24 . Q A number, about, I'm not asking you for 24 here at the City of Rancho Cucamonga? 25 specifics. 25 A Yes, sir. 17 (Pages 62 to 65) M&M Court Reporters, lnc. 714-972-2300 877-472-2300 Page66 Page 68 I Q What's your length of involvement in the public 1 Q Was it necessary for the city to comply with the 2 service in the meet-and-confer process? 2 time requirements of the grievance procedure in sending 3 A Approximately 16 years. 3 the letter on that particular day? d Q And are you also involved as part of the 4 A Yes. 5 grievance process or processing grievances here at the 5 Q At any time after you sent that letter, did you 6 City of Rancho Cucamonga? 6 and the chief have any sort of discussion in which he 7 A Yes, sir. 7 disavowed the position taken in that letter that the 8 Q Do you distinguish the meet-and-confer process 8 grievance was untimely? 9 from thegrievance process? 9 A No, sir. 10 A Yes, sir. 10 Q Did the chief ever inform you that he had some 11 Q Were you involved in any sort of process back in I I sort of mutual agreement with fire association in which to 12 June, July of 2002 concerning tuition reimbursement? 12 extend the time to file a formal grievance? 13 A Yes, sir. 13 A No, sir. 14 Q And what kind of process were you involved in, 14 MR. FILARSKY: No further questions. 15 sir? 15 MR. MARKMAN: Captain Berry, cross-examine. 16 A I was involved in a discussion of the 16 MR. BERRY: Thank you. 17 interpretation of the MOU; the discussion, what it means, 17 CROSS-EXAMINATION 18 and what the amount should be. 18 BY MR. BERRY: 19 Q Did you - 19 Q Mr. Rivera, are you normally involved in the 20 A 1 was involved in contacting both parties for 20 informal grievance process with the fire district? 21 communication purposes. 21 A Informal grievance process, no, sir. 22 Q Did you consider that part of the meet-and-confer 22 MR. BERRY: Thank you. No further questions. 23 process or part of the grievance process? 23 MR. FILARSKY: Nothing further sir. 24 A It was in the setting of meet and confer, 1 24 MR. MARKMAN: Council, any questions for 25 believe. 25 Mr. Rivera? Page 67 Page 69 1 Q At any time during your involvement of that 1 MR. KURTH: I do. I have a question. In your 2 process, was there ever a discussion in which you were a 2 exhibit 3, you state that the grievance wasn't filed in a 3 participant or overheard in which the fire chief and/or 3 timely manner. When would that have to have been filed to 4 any member of the fire association agreed to extend 4 have been done in a timely mariner? 5 indefinitely the time to formally file a grievance? 5 THE WITNESS: According to thc procedures, thc 6 A No, sir. 6 grievant has l5 days to flle a grievance from the time of 7 Q Did Mr. Berry have the ability to file a 7 the incident. 8 grievance on or about June lst after he was required to 8 MR. KURTH: That'~ not what it says. Itsaysthe 9 reimburse the city for the overpayment? 9 cause of the grievance. 10 A 1 was not aware of the overpayment until we were 10 THE WITNESS: From the cause, yes, that's what it 11 discussing this issue some time in Deeemher. I 1 is. 12 Q Okay. Do you assist in processing grievances? 12 MR. KURTH: lsn'tthecauseofthegrievancethe 13 A Yes, sir. 13 failure to negotiate a settlement? 14 Q Basedonyourknowledgeofthegrievance 14 THE WITNESS: lnmyview, thecauscofthe 15 procedure, did Mr. Berry have the ability to file a 15 grievance occurred when Mr. Ben3' was asked to rcimbu~c 16 grievance bach in the June of 2002? 16 the overpayment that was given to him by the district. ] 17 A Yes, sir. 17 believe in my research later, that occurred some time in 18 Q The letter that you sent which is exhibit 3, 18 May when be was askcd to remm somc ofthe money that was 19 would you take a moment to take a look at that. That has 19 given to him by the district. 20 your initials on it; is that correct? 20 MR. KURTH: Okay, thank you. 21 A Yes. 21 MR. ALEXANDER: Any other questions? 22 Q Whywasitthatitwassentbyyouinsteadofthe 22 MR. MARKJvlAN: You have other questions? 23 chief. 23 MS. WILLIAMS: Ihaveaquestion, Mr. Rivera, 24 A I believe the chief was not available at that 24 regarding the fact that you wrote the memo when thc chief 25 time so I had my initials there. 25 was not available, did you write thc memo aRer the 18 (Pages 66 to 69) M&M Court Reporters, Inc. 714-972-2300 877-472-2300 Page 70 Page 72 1 discussions or did you feel you were acting on direction ] MR. BERRY: No, sir. 2 from him or did you feel that he had knowledge of what was 2 MR. MARKMAN: Then I think we would take closing 3 in the memo? 3 arguments. Since it's a motion, Mr. Filarsky, I think you 4 THE WITNESS: I don't recall, but I -- for me to 4 should kick it off. 5 put his name on there, I wouldn't just put it without his 5 MR. FILARSKY: Thank you. Members of thc 6 permission or without any prior discussion. 6 council, I think it's important to understand that there 7 MS. WILLIAMS: So you feel you wrote thc memo 7 are a number of different types of discussions that can 8 after discussing with -- pretty much with his direction on 8 take place in the normal work environment. 9 his position of what should be said in the memo? 9 One discussion is just an informal type 10 THE WITNESS: I believe so. 10 discussion with no label whatsoever. Another type of 11 MS. WILLIAMS: Even though he wasn't available 11 discussion that olden takes place is a meet-and-confer 12 to -- 12 discussion. And another discussion that could take place 13 THE WITNESS: Right. That must have occurred ] 3 is a grievance discussion. There is absolutely no 14 after we had previous discussions with this issue, we 14 evidence before this board that as of May 30th or as of 15 would have decided that, you know, we need to respond to 15 June 2002, this was designated as a grievance within the 16 the grievance. 16 meaning of the grievance procedure by either Mr. Berry or 17 MS. WILLIAMS: Thank you. 17 anyone in the fire association. 18 MR. MARKMAN: Captain Berry. 18 Now, the purpose of the grievance procedure is to 19 MR. BERRY: Thank you, no questions. 19 address an event in which an individual or group of 20 MR. MARKMAN: Mr. Filarsky? 20 individuals are involved in which they are adversely 21 MR. FILARSKY: No, sir. 21 affected. With respect to the question fiom Council 22 MR. GUTIERREZ: Can l just make sure l ask him 22 MemberKurth, that took place on May 30th, 2002. Itwas 23 what he thinks the issue is? 23 on that date that Mr. Berry was required to reimburse the 24 MR. MARKMAN: Ask him whatever you think is 24 city for the overpayment, over and above the $1500 in 25 relevant. 25 tuition reimbursement. Page 71 Page 73 I MR. GUTIERREZ: Okay. Arc you saying -- I As of that date, he was an aggrieved individual. 2 Mr. River~ you just said a minute ago that you believe 2 He had been adversely affected because as an individual, 3 that thc grievance or the cause of thc grievance began 3 he did not receive what he believed he was entitled to 4 when he was denied reimbursement which was approximately 4 under the tuition reimbursement clause. It was in effect, 5 May 30th; is that what you -- you said you believe that's 5 according to him, a violation ora conteactural 6 thaissue? 6 relationship. Atthatpointintimewasthepointintime 7 THE WITNESS: Let me just correct that. He 7 that a grievance first arose. 8 wasn't denied the reimbursement, he was denied the full 8 Under the grievance procedure, which encourages 9 amount he was asking for. He was asking for, say, $2~000 9 resolution of these matturs in a timely matter under the 10 and hc was only rcimborscd -- he was reimbursed $2,000, 10 grievanceprocoss, he had l5 days tu file a formal writ~en 1 ] but later on was asked to return the excess amount. 11 grievance. That is ve~ cie. ar in D I believe on page -- 12 MR. GUT1ERREZ: So in your opinion the cause of 12 I'm sorry V(A) on page 21 of the grievance procedure. He 13 thc grievance began at that time versus when he had a -- 13 choose not to for whatever reason. And the association, ! 4 when he handed thc chief the grievance itself?. 14 in conjunction with the fire chief and administrative 15 THE WITNESS: That is correct, sir. 15 services, rather than using the grievance process, choose 16 MR. GUTIERREZ: Okay. Thank you. 16 to engage in an alternative process separate and apart 17 MR. MARKMAN: Anything further with Captain 17 from the grievance process. ] 8 Ber~? ] 8 Now, in order to utilize that grievance process, 19 MR. BERRY: No, sir. 19 you have tu file a timely ga-ievance. Andinorderto 20 MR. MARKMAN: Mr. Filarsky? 20 protect your interest, in retrospect, what Mr. Bert), 2 ] MR. FILARSKY: No, sir. 21 should have done at that point in time was file a formal 22 MR. MARKMAN: Council? 22 grievance. Much like filing ih a court ~o meet ~i statute 23 Do you have another witness, Mr.'Filarsky? 23 of limitations, if you're there before the statute runs, 24 MR. FILARSKY: No, sir. 24 you got a timely filing. If you're a day late, you're out 25 MR. MARKMAN: Captain Berry? 25 of luck. 19 (Pages 70 to 73) M&M Court Reporters, Inc. 714-972-2300 877472-2300. Page 74 Page 76 I Had he filed that grievance within 15 days, then 1 the fire chief say that they were -- we were in meetings 2 pursuant to the other section of the MOU, the parties 2 about this process when it was convenient and that was 3 could have mutually agreed to hold that processing of that 3 beginning November 26th. 4 grievance in advance and in any other discussions that 4 In the meetings that took place prior to and 5 took place, whether they were informal discussions under 5 right at,er the denial of full payment, the informal 6 the grievance procedure or the meet-and-confer process. 6 process took place. The informal process has been given 7 But he did not do that. He did not act to proteet his 7 to you folks in exhibit 6, and it explains it in Article 8 interest under the grievance process. He waited until 8 IV, number four, the informal grievance procedure takes 9 December 17th. 9 place. That is where all grievances begin, because it's I 0 And you have heard conflicting testimony as to I 0 our intention between the fire chief and ourselves to I 1 whether or not there was some sort of agreement to hold 11 settle these matters in an informal matter and at that 12 things in abeyance. There was an agreement to hold things 12 level. It's not until that process fails that the 13 in abeyance; but it wasn't the grievance process, it was 13 informal process takes place, which we do have a form 14 the meet-and-confar process that the parties were engaged I4 which the chief pointed out is the form that we use in the 15 in trying to resolve this in order to settle it. There 15 formal process. When the informal process takes place -- 16 was no agreement, there was no explicit discussion to hold 16 fails, that form is utilized. And the informal process 17 the grievance process in abeyance pending these 17 did fail, and the form was utilized. 18 discussions. 18 The reason that it did take so long to get to 19 And they are two separate and distinct processes. 19 that part, to that informal process, is because, like 1 20 If one wants to hold the grievance process in abeyance, 20 said earlier, there was a mutual agreement by both parties 21 then they have to do so by specifically identifying it as ! 21 and unanimously agreed upon to put it off until we could 22 a grievance process, not this general discussion. And ' 22 get down to talk about it. We couldn't agree upon it. So 23 while Mr. Spagnolo and Mr. Ploung testified that there was 23 the formal process took place. The formal process being 24 this agreement to continue things, what they were 24 the actual grievance itselfi 25 continuing was not the grievance process, but the 25 You heard Mr. Filassky talk about meet and Page 75 Page 77 1 meet-and-confer process. As a consequence when this I confer. I'm here to tell you that I am not a member of 2 grievance is filed on December 17th, or it actually was 2 the n~et-aad-confer process. The meet-and-confar process 3 ~eceived on December 18th, it is untimely. 3 in order to take place requires documentation and a 4 The grievance is not the failure of the informal 4 request for a meet and confer to take place. That 5 discussion. The grievance is not the failure to reach 5 documentation does not exist because meet and confer did 6 settlement. The grievance in not that the settlement was 6 not exist. This was all part of the grievance procedure 7 not sufficient enough to satisfy us. The grievance was, 7 and the grievance process. 8 you did not pay me in excess of $1500 back in May of 2002; 8 It's not uncommon for this to take place and it's 9 in fact, you went one step further, you made a mistake in 9 not uncommon for the chief or ourselves to ask if we could 10 the payment and you're required to pay it back. As a 10 put this off. You heard testimony that the reason it was I I consequence, that's when the grievance time started and he 11 put off was because there were so many other issues that 12 failed to file a timely grievance. Once again, we would 12 were taking place that this was not pressing at the time. 13 ask you to dismiss this grievance as being untimely. 13 I agreed to that myself after talking to the shop steward. 14 Thank you. 14 I can wait. I was willing to wait, and 1 did wait. I 15 MR. MARKMAN: Let's take a five~minuta break for 15 waited until November 26th when I was notified of our 16 the court reportar's sake. 16 first tneeting. 17 (Recess.) 17 That meeting took place in Mr. Temple's offioe. 18 MR. ALEXANDER: We will he back on the record. 18 Tben we had another one on Decerrd0er l0th, and then we had 19 MR. MARKMAN: Captain Berry, your argument, 19 another one on December 18th. It is not until December 20 please. 20 18th that the informal process failed. And that's when 21 MR. BERRY: Thank you. This evening so far 21 the formal grievance process took place, and that's when 22 you've heard testimony about the timeliness issue. You've 22 the formal paperwork was administered to the fire chief. 23 heard testimony which proves that the meet -- the 23 It was handed to him in Mr. Temple's office. 24 grievance process informally did take place in a timely 24 From that point on, the time limits were strictly 25 fashion with Mike Ploung and Sam Spagnolo. You heard also 25 abided by, the three days that was required. Everything 20 (Pages 74 to 77) M&MCourt Reporters, Inc. 714-972-2300 877-472-2300 Page 78 Page 80 1 was in order. When we received our notification that they 1 whether to dismiss the grievance proceedings. In other 2 had denied the grievance, unfortunately for you folks, 2 words, not get to the merits of the next issue concerning 3 that's why we're here now, because that's the process that 3 that section of the MOU on tuition reimbursement because 4 we have. 4 the grievance was not filed in a timely manner. 5 So timeliness is not a factor in this case. Both 5 The council can assess it and have a motion on 6 parties agreed that the issue wasn't even talked about 6 it. If the motion is to agree that the matter should be 7 untilNovember26, lt was not a meet and confer, themis 7 dismissed, l will take that as a direction to pmpam a 8 no paperwork that supports meet and confer where 8 resolution which will.be presented to you reflecting your 9 documentation for meet and confer is required. So on 9 discussions and findings in taking that action. ]f your 10 those merits alone, the grievance is timely. Thank you. 10 decision is that the motions should be -- that the 11 MR. MARKMAN: Your rebuttal, Mr. Filarsky. 11 grievance should not be dismissed, then I suggest we go on 12 MR. FILARSKY: The only thing l would ask the 12 to the only other iasoe pmsented, which woald be the 13 board to do is to closely read section 4 in the informal 13 interpretation of the application of the tuition 14 process that Mr. Berry has referred to. Informal process 14 reimbursement language in the MOU. 15 is not designed to be a six-month process. It is designed 15 MR. ALEXANDER: It's up to the council, l 16 to go to the immediate supervisor, and it is very clear 16 suggest we go straight on down the line. 17 thatiftheyfailtoapplywithinthreedaysortheyam 17 MR. KURTH: I think that grievanne was filed in a 18 dissatisfied with the resolution, then they immediately go 18 timely manner. I mean, it seems to me that the issue was 19 to the formal process. And when you look at section four 19 dealt with by the city up to and including December 17th. 20 and the formal process, the trigger event for the 15 days 20 They txied to resolve the issue, I don't think that was 21 is not the conclusion of the informal process; the trigger 21 wrong, it sounds like beth parties were trying to resolve 22 event for the l5 days is the event in arise to the 22 the issue; but it wasn't until the l7th that the cit3, made 23 grievance, which in this case occurred on May 30th. 23 a final offer and the union rejected that offer. And so 24 Once again, Mr. Berry could have protected his 24 that was only one day before the -- before the grievance 25 rights by filing the grievance back some time between 25 was filed. Page 79 Page 81 1 May 30th and June 15th and then agreeing to hold an 1 So I don't see that the timeliness of the 2 abeyance while the meet-and-confer process took place, but 2 grievance being filed is an issue. And so I think we 3 that did not occur. Thank you. 3 should go ahead an hear the grievance. 4 MR. MARKMAN: Response. Any? 4 MS. WILLIAMS: Well, l can see where there's -- 5 MR. BERRY: Just that Mr. Filarsky continues to 5 this is one of those -- if the employee acted in good 6 refer to the meet-and-confer process. The informal 6 faith thinking that the informal was still continuing, and 7 grievance process is what we're refen/ng to. And I'm 7 no one - I guess if I were the employee, and I was moving 8 glad that Mr. Filarsky brought it up, because number four 8 along thinking I'm in an informal situation discussion, 9 does, in fact, clearly state them are no time limits. 9 maybe not even planning to go file a grievance until being 10 Those time limits were agreed upon by two parties, and it 10 disappointed that the resolution didn't happen in the way 11 does not give a time limit on that. lt could be a year, 11 it was going to happen, then tu me that's when the 12 it could be as long as necessa~. In Sam Spagnolo's 12 grievance or cause for grievance occurred. And that's 13 letter, he simply states when convenient, it wasn't 13 probably in the interpretation, but I would say pmbahly 14 convenient until then. The district didn't apply. 14 that's when it occurred. 15 So on those merits, that's where -- and like I 15 Because someone -- it doesn't say here that you 16 said, the meet-and-confer process was never invoked; it 16 should file a formal grievance form that's held and that's 17 was all informal trying to msolve this issue and it 17 put in the file, and then we go look for an informal way 18 didn't happen. So the formal -- so step three was -- step 18 tosolveit, l don't see that hem. Solthinksomeone 19 five had taken place. At that point we had three days to 19 operated in good faith thinking we'll solve this and then 20 file the gfievance, andwedid. That begins the formal 20 it didn't get solvnd. But l do say that we need to 21 grievance process. Thank you. 21 rewrite that language, because it seems to me that someone 22 MR. MARKMAN: Anything further, Mr. Filarsky? 22 should have sent a letter or something saying, you realize 23 MR. FILARSKY: No, sir. 23 the clock is ticking. You realize the time is now or we 24 MR. MARKMAN: It's now up to the council. 24 want to make you aware that the time is this. And there's 25 Tbem's a motion. First issue in this proceeding is 25 no correspondence that was sent like that. So I would say 21 (Pages 78 to 81) M&MCourtReporters, lnc. 714-972-2300 877-472-2300 Page 82 Page 84 I ' it was probably filed in -- rd say it was both 1 somewhere before we move forward. 2 interpretations. 2 MR. ALEXANDER: Mr. Gutierrez? 3 MR. ALEXANDER: So your motion is to continue? 3 MR. GUTIERREZ: Yeah. I wish we had small claims 4 MS. WILLIAMS: I think we should keep moving. 4 court in this system that's maybe commission or 5 MR. ALEXANDER: As much as I think about it, 1 5 subcommittee to deal with, what I consider, very trivial 6 don't think it was filed appropriately. I think that the 6 amounts of money and a waste of time of all of us being 7 union, there should be an anticipation and should have 7 here. 8 dotted every "1" and crossed every "T". And whether it's 8 Having said that, I am surprised that the parties 9 good, bad, or indifferent, you should have put something 9 involved, both &them frankly, from past experience 10 in there to cover your rear end, and it didn't get done. 10 hadn't established some kind &precedence, and I'm 11 And we may, in fact, go on to the n~rits &this; 11 surprised that this hasn't happened before. Every 12 however, when I look at Mr. Spagnolo's memorandum, he 12 situation is a little different, but 1 believe that -- I'm 13 mfers to this as a grievance, not as a meet-and-confer or ' 13 justbackingupinthiscaseourchiefi And l do believe 14 anything else. If, in fact, it's a grievance procedure, 14 there is a timeliness issue here. 15 then 1 believe the clock was ticking during that 15<lay 15 I don't know how they couldn't understand there 16 period. 16 wasn't a grievance because apparently around May 30, I 17 That's my opinion. So l disagree with my 17 would take it that there was a grievanee that l think 18 colleagues. 18 should have been acted on. However, I'm disappointed that 19 MS. WILLIAMS: One of the differences may be that 19 the city allowed this to continue and didn't mention, by 20 I have never been involved or in the union, so you are 20 the way, you know it's too late anyway, because the time 21 probably mom familiar with -- I'm just saying. 21 has passed. But in this case, I think that there should 22 MR. ALEXANDER: This is new ground for me, too. 22 have been an understanding that this gtievance started in 23 MS. WILLIAMS: That's interesting that I'm q- I'm 23 May, and I will support the motion to dismiss for that 24 just looking at it as a total outsider and you know, kind 24 mason. 25 of know the behavior of the -- well, yeah. 25 MR. MARKMAN: Okay. We need a motion. Page 83 Page 85 I MR. HOWDYSHELL: I guess you all summedit up 1 MR. GUTIERREZ: I make a motion to dismiss on 2 pretty well. I guess l think it's new grounds for council 2 timeliness issue. 3 tobeinvolvedinthis, and l feel that's why we pay a 3 MR. ALEXANDER: lwillsecondit. Forthe 4 chief and HR director to resolve these issues. This is -- 4 purposes &discussion, because I do want to discuss it, 5 in my estimation, this is a relatively insignificant 5 because I think that we had a degree of wisdom that's come 6 issue, and 1 wish it could have been settled other than 6 up that allows for the continuation of this heating. 7 being here at the council. 7 Though, 1 would agree there's a degree ofnoasense and 8 I believe it's a timeliness issue also. From 8 everybody having to come here for this reason, for the 9 what I see, everybody abides by the time frame very 9 expenditure of funds, for the court reporter, and for the 10 clearly for the cause being the lack of reimbursement that 10 time of attorneys seems a little bit ledicmus. 1 think 11 the requirement ~, pay back some &the funds that were 11 by all terms, probably you can see there's some 12 paid, and they didn't meet that time frame. My real vote 12 inappropriateness on both sides. And I would agree with 13 would be to get these people together and get it resolved 13 that. However, 1 would almost hope, as Mr. Howdysbell 14 outside of the council members. I don't know if 14 explained, that we could get together on this thing and 15 Mr. Markman could give us any guidance on that if there's 15 attempt to work it out prior to coming here. lfwe can't, 16 any opportunity for the parties to get together to try and 16 can we take and have the record of this to keep us up to 17 rasolvethat. 17 thispoint? Ifwecan'tgettothispoint-- 18 MR. MARKMAN: Ofcoumetbereis. But I can't 18 MR. MARKMAN: Council ca~ continue - you can 19 let you oft'the hook unless the council wants to -- 1 19 continue this hearing. 20 mean, the council can hold the motion to continue the 20 MR. ALEXANDER: l will go abead and second 21 hearing hoping it gets resolved, the council can always do 21 Mr. Gutierrez because I think that's where I stood; 22 that. 22 however, I would appreciate the recommendation to consider 23 MR. HOWDYSHELL: I believe it was untimely, but I 23 modifying it to continue it, and we can always -- 24 would certainly support trying to get the two parties 24 MS. WILLIAMS: Can 1 ask them to resolve the 25 together to resolve this matter during this process 25 whole matter not just the timeliness issue? 22 (Pages 82 to 85) M&M Court Reporters, lnc. 714-972-2300 877-472-2300 Page 86 Page 88 1 MR. ALEXANDER: Absolutely. I MR. MARKMAN: Council Gutierrez says when the 2 MS. WILLIAMS: Make some sort ora compromise, an 2 council returns, if there's not an agreement, he will 3 agreement of some son that's acceptable to all parties? 3 renew his motion and then we'll see if there's a vote. 4 MR. ALEXANDER: That's correct. 4 MR. FILARSKY: Okay. 5 MS. WILLIAMS: But that may already have been 5 MR. ALEXANDER: If we can get down here earlier 6 tried to everyone's -- maybe we should ask. Has that been 6 hopefully you all will try. Thank you. 7 tried to death and everyone has decided that it can't? 7 (End of proceedings.) 8 MR. ALEXANDER: Can 1 answer part of that, 8 9 please? 9 10 MS. WILLIAMS: Yes. l0 I ! MR. ALEXANDER: I believe that it never comes to 11 12 this unless we've done that. l think everyone felt that 12 13 they have. I think maybe there's a feeling to some of the 13 14 people that sit up hexe that you got to do more, you got 14 15 to go bank and do more. 15 16 MR. MARKMAN: Sounds like judges talking to 16 17 lawyers. My suggestion - if you want to hold this, my 17 18 suggestion is to withdraw any motion at this time and have 18 19 a motion to continue this hearing to, I would say the 19 20 meeting oftbe 18th of June. 20 21 MR. HOWDYSHELL: Well, this can't be resolved 21 22 tonight? 22 23 MR. MARKMAN; Oh, you mean you want to take a 23 24 recess and see if they can resolve it? 24 25 MR. HOWDYSHELL: Yes, fight now. 25 Page 87 Page 89 1 MR. GUTIERREZ: lfthey don't resolve it, I'd 2 want to continue with my motion. 2 Reporter of the State of California, do hereby certify: 3 MR. HOWDYSHELL: I'd like to see a result 3 That the foregoing proceedings were taken before ~. tonight. I don't -- it would be nice to get it over. 4 me at the time and place herein set forth; that any 5 MR. MARKMAN: You want to take a recess for an 5 witnesses in the foregoing proceedings, prior to 6 hour? 6 testifying, were placed under oath; that a verbatim record 7 of the proceedings was made by me using machine sher~hand. 7 MR. ALEXANDER: I want to take a recess for a 8 which was thereafter tlansmbed under my direction; 8 half hour. Then we'll go up -- can we go ahead and 9 further, that the foregoing is an accurate transcription 9 dismiss to a closed session? 10 thereof. I 0 MR. MARKMAN: The council will turn to the closed 11 1 further certify that I am neither financially 11 session and return in about a half an hour to see if the 12 interested in the action nor a relative or employee of any 12 matters have been resolved. 13 attorney of any of the parties. 13 MR. FILARSKY: Excuse me. Before you adjourn, on 14 IN WITNESS WHEREOF, I have this date subscribed 14 a personal issue, Mr. Berry and I had discussed prior to 15 my name. 15 tonight that I have a commitment with Orange County 16 16 Sanitation District this evening, yet another board 17 Dated: 17 meeting to go to, and we agreed to end at S:00. Andhe 18 18 graciously agreed that if we did not finish, we would 19 19 continue until -- 20 JACLYN K. VERKLER 20 MR. ALEXANDER: That will be it. CSR No. 12647 21 MR. FILARSKY: 1 understand, but what 1 would 21 22 like to do then, if possible is either we have -- as I 22 23 understand the discussion among the council is either we 23 24 have an agreement or you're going to go ahead and adopt 24 25 the motion to dismiss or consider the motion to dismiss. 25 23 (Pages 86 to 89) M&M Court Reporters, Inc. 714-972-2300 877-472-2300 Page 90 A agreeable 29:9 answer 8:9 33:14 34:19 assess 80:5 66:2567:2469:17 abeyance 74:12,13,17 agreed 11:2! 21:8 34:21 35:24 36:2,18 assist 67:12 70:10 71:2,5 73~11 74:20 79:2 22:13,15 23:7 24:10 37:1 45:2 51:16 56:3 assistance 19:1 82:15 83:8,23 84:12 abided 77:25 27:11 29:11,13 31:3 57:6 86:8 associating 52:11 84:t3 86:11 abides 83:9 32:8 37:15 38:19 answered 36:8,9,10,11 association 5:5 12:]2 believed 73:3 ability 16:t3 62:3,6 52:18 67:4 74:3 37:21 56:20 14:20,23 15:8,14,15 believes 18:19,20 24:25 67:7,15 76:21 77:13 78:6 answering 36:13 59:7 15:21 16:6 20:13,24 bells 38:2 able 8:13 20:11 43:7 79:10 87:17,18 answers 64:13 23:3 27:24 30:20 benefit 5:3,6 16:16 absence 24:10 agreeing 79:1 anticipation 82:7 31:10,22 32:12 35:12 benefited 31:21 absent 29:21 agreement 12:4 15:6,7 anybody 5:6 27:1 36:20 37:7 42:10,16 benefitting 31:24 absolutely 22:9 72:13 19:4 20:23 22:21 29:19 36:2042:9, t6 44:5,8,13,20 67:4 Berry 1:5 2:5 3:3 5:14 86:1 23:16 25:11,13 29:5 44:2053:5 65:3 68:11 72:17 73:13 5:24 6:14 7:2 8:13,25 acceptable 36:18 58:t6 30:14,15,20 31:16 anymore48:4 61:18 ' association's 14:24 9:17 11:25 13:4,6,15 86:3 32:12,14,15,17 33:5 anyway 30:19 84:20 assumed 16:11 13:16,24,25 14:8,17 accompanied 29:19 33:8 36:24 42:11,18 apart 57:5 73:16 assuming 10:13 17:1,7 19:13 20:18 accurate89:9 57:1868:11 74:11,12 apparently 84:16 attached35:5 20:2021:11,14,17,21 act5:18 10:23 74:7 74:16,2476:2086:3 appeal6:15 14:18 attempt 51:17 61:3,10 22:2423:3,23,24 acted 81:5 84:18 87:24 88:2 APPEARANCES 3:1 85:15 27:7,9,18 29:24 30:4 acting 70:1 agreements 31:10 appeared 16:18 attorney 3:6,13 11:23 32:24 35:12,25 36:7 action 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