In re Metro & Am. Fed'n of AFSCME Local 3580
| Decision Date | 21 June 2021 |
| Parties | In the Matter of METRO and AMERICAN FEDERATION OF. STATE, COUNTY AND MUNICIPAL EMPLOYEES LOCAL 3580 |
| Court | Oregon Employee Relations Board |
Arbitration Opinion and Award of Alan R. Krebs
Grievance: [Redacted] - Bumping/Wages
Appearances:
Joyce Wan for the Employer
Lane Toensmeier for the Union
The Arbitrator was selected by the parties from a panel of arbitrators provided by the Oregon Mediation and Conciliation Service in accordance with Section 19.6 of their Collective Bargaining Agreement. In view of the current pandemic situation, the hearing, held on April 14, 2021, was conducted on a remote platform. The Employer, Metro, was represented by Joyce Wan, Senior Assistant Attorney. Lane Toensmeier, Staff Attorney, represented the Union, American Federation of State, County and Municipal Employees Local 3580. During the hearing, witnesses testified under oath and the parties presented documentary evidence. Post-hearing briefs were submitted.
The parties agreed upon the following stipulated statement of the issue to be decided by the Arbitrator:
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Article 3: Management Rights
The employer shall have and retain the sole responsibility for the management and operation of all Employer's functions and direction and control of its work force, facilities, properties, programs and activities, except as expressly limited by the terms and conditions of this Agreement. These rights include but are not limited to the following:
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(2) Planning, directing, controlling and determining the operations or services to be conducted by employees;
(3) Determining the methods, means, number of personnel needed to carry out any department's mission;
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(7) Laying off or relieving employees due to lack of work or funds or for other legitimate reasons;
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Article 14: Salary Administration
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If an employee is moved to a classification with a lower salary range, for reasons unrelated to discipline, the employee's rate of pay shall remain the same and the employee shall not receive cost of living adjustments, until such time the top of the salary range in the new classification exceeds the employee's rate of pay. At such time the employee's rate of pay shall be placed on the step of the salary range closest to the employee's rate of pay without decreasing theemployee's rate of pay. The employee's anniversary date shall remain the same for downward reclassification.
If an employee voluntarily moves to a classification with a lower salary range and the employee's current rate of pay exceeds the salary range for the new classification, the employee's rate of pay will be placed at the top step of the range for the new classification. If the employee voluntarily moves to a classification with a lower salary range and the employee's current rate of pay falls within the salary range for the new classification, the employee's rate of pay will remain the same. The employee's anniversary date shall remain the same for voluntary demotion.
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Article 16: Seniority
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Layoff shall be defined as a separation from service for involuntary reasons not reflecting discredit upon employees or an involuntary reduction of full time equivalent (FTE) status of .5 or greater from the last voluntary FTE status change. The Chief Operating Officer shall determine the number and classifications to be laid off. ...
Employees will be laid off by classification within the department with the least senior employees laid off first.
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Employees shall be given thirty (30) days notice of layoff. Employees given notice of layoff shall within ten (10) working days:
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Article 19 Grievance Procedure
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The Arbitrator's decision in the grievance shall be final and binding upon the parties. The Arbitrator's decision shall be within the scope of the Agreement. The Arbitrator shall have no authority to alter, amend, modify, add to or detract from the Agreement. The losing party shall pay the cost of the Arbitrator's award. All other expenses shall be borne by the party incurring them.
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Metro is a regional government agency for the Portland metropolitan area that provides services, including, among others, garbage and recycling facilities, parks, the Oregon Zoo, the Oregon Convention Center, and Portland's Centers for the Arts. As a result of the fiscal crisis caused by the Covid-19 pandemic, Metro laid off a large number of its employees. The Grievant was one of the affected employees, as her position was eliminated. This dispute essentially involves whether the rate of pay that the Grievant should receive after she exercised contractual bumping rights to bump into a lower rated classification should be governed by Section 14.8, andthereby be reduced to the top step of that classification, or whether it should be governed by Section 14.7, and accordingly be frozen at the rate she received in her former position.
The Grievant has worked for Metro for 22 years. She has been an Associate Management Analyst, an Assistant Management Analyst, and was a Program Coordinator II for the seven years preceding her pandemic-related layoff. As a Program Coordinator II, the Grievant held the position of Fleet Vehicle Program Manager. That was a Grade 19 position in the Metro's classification plan, and she had reached step 6 on the pay scale. She made $91,811 per year, or $44.14 per hour.
On September 30, 2020, the Grievant was notified that as a result of a revenue shortfall, her position as Fleet Vehicle Program Manager was being eliminated, and that she would be laid off, effective October 30, 2020. In the layoff notice, the Grievant was advised that according to her rights under the Collective Bargaining Agreement, she had ten days to elect one of the following options:
On October 2, 2020, the Grievant responded that she wanted to exercise her bumping rights. The Grievant testified that there were no vacant positions available to her, and she was not qualified for any other Program Coordinator II positions. She testified that the Company's Human Resources Department provided her with job descriptions of Assistant Management Analystpositions that she might bump into, and she was asked whether she believed that she was qualified for any of them.
Dorian Gualotunia is a Human Resources Manager and led a team that oversaw the layoff process. Mr. Gualotunia testified that laid off employees do not select a position in which to bump, but rather are placed in one after an interview and a management determination that they are qualified. He further testified that if the employee indicates that he or she is not qualified for the position, then they would look at remaining bumping options. Another option for the employee is to accept a layoff as some other employees did, rather than bump another employee. On October 8, 2020, the Grievant accepted bumping into a position of Assistant Management Analyst in Metro's Solid Waste and Recycling Department, effective November 2, 2020. That was a Grade 14 position in the classification pay schedule. The Grievant was advised that her pay would be reduced to $36.31 an hour. That is the top step pay for a Grade 14 position.
On October 30, 2020, Union President Elizabeth Goetzinger met with two Company representatives, Melissa Edwards and Emily Curo, to discuss the wage rate that the Grievant was to receive following her bump into the Assistant Management Analyst position. Ms. Edwards is the Company's Labor and Employee Relations Program Manager. Ms. Curo was a Recruitment Analyst in Human Resources. During this meeting, an agreement was reached that Section 14.7 of the Collective Bargaining Agreement applied, and accordingly the Grievant's wage rate would be frozen at the rate she had been receiving as a Program Coordinator II. Ms. Edwards testifiedthat both she and her supervisor had agreed that this was the proper interpretation of Section 14.7. Also on October 30, Ms. Edwards sent the following email confirmation...
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