CASE 3

(chapter 9 from Labor Relations: Striking a Balance 6th edition should be used)

QUESTIONS

1. As the City of Avondale personnel director, how would you present your case that the transfer of Enrique Calderon did not violate the agreement?

2. As a local union official, how would you argue that the City's action regarding Enrique Calderon' transfer violated the contract?

3. As an arbitrator, how would you rule? Why?

Nearly 85 percent of the residents of the south Arizona city of Avondale were Latinx, and many residents spoke only Spanish. Many of the city's civil service jobs, including the fire dispatcher, comprised the bargaining unit represented by the Communications Workers of America (CWA) Local 5.

Enrique Calderon was a fire dispatcher for the City of Avondale on the 7:00 A.M. to 3:00 P.M. shift. A regular dispatcher on the 11:00 P.M. to 7:00 A.M. shift started maternity leave on November 23, which caused a temporary (six-month) vacancy on this shift. To temporarily fill this vacancy until a six-month replacement could be found, Fire Chief Edward Scalia transferred Calderon to the 11:00 P.M. to 7:00 A.M. shift because Calderon was bilingual.

The chief then posted a vacancy notice for a temporary dispatcher for the 11:00 P.M. to 7:00 A.M. shift and stated that the dispatcher must be bilingual. However, no one volunteered, so the chief transferred Calderon to fill the position until the prior dispatcher returned from maternity leave six months later. While Calderon was the most junior bilingual dispatcher, he was not the most junior dispatcher. In fact, Calderon had enough seniority to work a shift other than 11:00 P.M. to 7:00 A.M., and the transfer was made despite his objection. The city freely admitted that Calderon was transferred because of his ability to speak Spanish.

Calderon, however, did not want to work the 11:00 P.M. to 7:00 A.M. shift and thus filed a grievance requesting to be transferred back to his day shift immediately because the city violated the collective bargaining agreement.

TESTIMONY AT THE ARBITRATION HEARING

At the grievance hearing, the city's personnel director testified that the city had considered language ability as a factor in establishing schedules for the last 10 years, especially for the fire dispatcher and police complaint officer positions. In fact, the city's schedules specified the number of bilingual workers required per shift. Consequently, shift assignments were based not solely on seniority but also on language ability. Examples could be cited of junior employees who were promoted instead of more senior employees because of language ability. Finally, the city's recently enacted hiring policy required all new fire dispatchers to be bilingual.

Both parties agreed that Enrique Calderon's transfer was based on his language ability and that he had the seniority to work a different shift.

POTENTIALLY RELEVANT CONTRACT PROVISIONS

ARTICLE 6: MANAGEMENT RIGHTS

Section 1. The union agrees that the city has and will continue to retain, whether exercised or not, the right to operate and manage its affairs in all respects; that the powers or authority which the city has not officially abridged, deleted, or modified by the express provisions of this agreement are retained by the city. The rights of the city, through its management officials, shall include, but shall not be limited to, the right to determine the organization of city government; to determine the purpose of each of its constituent departments; to exercise control and discretion over the organization and efficiency of operations of the city; to set standards for service to be offered to the public; to direct the employees of the city, including the right to assign work and overtime, to hire, examine, classify, promote, train, transfer, assign, and schedule employees in positions with the city; to suspend, demote, discharge, or take other disciplinary action against employees for proper cause; to increase, reduce, change, modify, or alter the composition and size of the workforce, including the right to relieve employees from duties because of lack of work or funds; to determine the location, methods, means, and personnel by which operations are to be conducted, including the right to determine whether goods or services are to be made or purchased; to establish, modify, combine, or abolish job pay positions; to change or eliminate existing methods of operations, equipment, or facilities; to determine the methods, means, and number of personnel needed or desirable for carrying out the city's mission and to direct the workforce.

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Section 5. Delivery of municipal services in the most efficient, effective, and courteous manner is of paramount importance to the City of Avondale. Such achievement is recognized to be a mutual obligation of both parties in their respective roles and responsibilities.

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ARTICLE 10: NO DISCRIMINATION

Section 1. The city and the union agree that the provisions of the agreement shall be applied equally to all employees in the bargaining unit without discrimination as to age, sex, marital status, race, color, creed, national origin, or political affiliation.

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ARTICLE 30: LAYOFF AND RECALL

Section 2. Recall

A. Employees shall be called back from layoff according to the same criteria for layoff (i.e., the most senior person will be recalled unless in the city's judgment special skills are required.

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ARTICLE 31: SENIORITY

Section 1. All provisions within this article shall constitute the basis for establishing a uniform procedure of seniority for vacations, shift transfers, days off preference, and overtime.

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Section 4. It is recognized that the principle of merit must be given consideration in any "efficiency conscious" organization; therefore, the department/division heads reserve the right to final determination regarding employee transfer, shift assignment, days off, and vacation time.