Meeting Date:

October 17, 2005

Budgeted:  N/A





David A. Berger,




General Manager

Line Item No.:




Prepared By:

Cynthia Schmidlin

Cost Estimate:



General Counsel Approval:  Yes

Committee Recommendation:  N/A

CEQA Compliance:  N/A


SUMMARY:  On June, 24, 2005, Board-appointed Hearing Officer, Peter Lujan, heard an appeal of the General Manager’s Grievance Determination (Exhibit 12-A) regarding interpretation of the Health Benefits section of the General Staff Bargaining Unit Memorandum of Understanding (MOU). Mr. Lujan submitted his “Findings, Conclusions and Recommendation” on July 27, 2005 (Exhibit 12-B). 


According to the Grievance Procedure, after a review of the record and recommended findings, conclusions and decision of the Hearing Officer, the Board shall either adopt the Hearing Officer’s findings, conclusions and decision, or reject those findings and adopt their own findings, conclusions and decision by affirming, modifying or reversing the order of the General Manager. 


After reviewing Mr. Lujan’s findings, labor attorney Ellen Aldridge, the District’s lead negotiator during negotiations on the General Staff Bargaining Unit MOU, submitted the attached memo on contract interpretation law for the Board to also consider (Exhibit 12-C). 


The Board considered the Hearing Officer’s findings, conclusions and recommendations at their meeting on September 19, 2005.  At that time, LIUNA representative Tim McCormick asserted that it was unfair for the District to submit a legal opinion, since the union was not given the same opportunity.  He urged the Board to consider only the hearing officer’s decision, and to discount the legal opinion that was submitted by the District.  Mr. McCormick then requested a continuance of this item so that the union could consult with legal counsel and present a legal brief for Board consideration. The Board voted to continue this item to the October 17, 2005 Board meeting and requested that both parties submit briefs outlining their positions.


A legal opinion from Ms. Ann Yen of the law firm of Weinberg, Roger and Rosenfeld, representing LIUNA Local 270, is included as (Exhibit 12-D).  A legal opinion from Ellen Aldridge, responding to the letter brief from Ms. Yen, is attached as (Exhibit 12-E).   


Additionally, a letter and attached spreadsheet from Tim McCormick (Exhibit 12-F), and a spreadsheet prepared by Management staff on how the provisions of the Health Benefits Section of the General Staff Bargaining Unit MOU have been applied (Exhibit 12-G), are included.

RECOMMENDATION: That the Board review the record and determine if they will either:


A.        Adopt the Hearing Officer’s recommended findings, conclusions and decision, or


B.         Reject the recommendations of the Hearing Officer and adopt its own findings, conclusions and decision by affirming, modifying or reversing the determination of the General Manager. 


IMPACTS TO STAFF/RESOURCES: Adopting the Hearing Officer’s recommended findings will cost the District an additional $4,500 for FY 2005-2006, as compared to the costs associated with Management’s interpretation of the Memorandum of Understanding.  Similar costs will also be incurred on an annual basis in the future. An additional $2,160 to cover retroactive payments back to January 1, 2005, for the three employees opting out of the District’s health plan, would bring the total additional expenditure during this fiscal year to $6,660.


BACKGROUND:  On February 15, 2005, the Laborers’ International Union of North America (Union) representing three members of the General Staff Bargaining Unit stated their proposed grievance on interpretation of the Health Benefits section of the General Staff Bargaining Unit Memorandum of Understanding (MOU).  The proposed grievance concerned interpretation of the Health Benefits section of the MOU regarding those employees who opt out of the District’s health insurance coverage.


Cynthia Schmidlin, Human Resources Analyst, met with the three employees and their Union representative on March 4, 2005 to discuss the issue informally.  After conferring with Rick Dickhaut, Administrative Services Manager/Chief Financial Officer, regarding the substance of the employee’s complaint, Ms. Schmidlin advised the Union that the Administrative Services Division interpretation of the MOU would stand.  The Union appealed this decision to the General Manager.  On April 1, 2005, David Berger met with all parties, sought information and heard arguments. On April 8, 2005, Mr. Berger issued his determination in the matter and denied the grievance.  In a letter dated May 13, 2005, the Union submitted an appeal of the General Manager’s decision regarding the grievance to the Board.


On June 20, 2005, the Board voted to appoint Peter Lujan of the California State Conciliation and Mediation Services as Hearing Officer in the matter of the grievance.  The grievance hearing took place on June 24, 2005.  Mr. Lujan met with, heard statements from, and asked questions of  the General Staff Unit members and their LIUNA representative, Tim McCormick, as well General Manager, David A. Berger, Chief Financial Officer, Rick Dickhaut, and Human Resources Analyst, Cynthia Schmidlin. The Hearing Officer submitted his findings, conclusion and decision on July 27, 2005. 



12-A    General Manager’s Grievance Determination

12-B    Hearing Officer’s Findings and Recommendations

12-C    Ellen Aldridge Letter dated September 13, 2005

12-D    Anne Yen Letter dated October 5, 2005

12-E    Ellen Aldridge Letter dated October 11, 2005

12-F     Tim McCormick Letter and Spreadsheet

12-G    Management Spreadsheet