1 FACTFINDING PROCEEDINGS
In the Matter of the ) Anthony Miller
Impasse Between ) 2020 5th St #2220
) Davis, CA, CA 95616
ADMINISTRATIVE TEAM ) 805/657-8794
ASSOCIATES )
)
Union, ) Case Number: LA-IM-310-M
)
And ) FACTFINDING REPORT
)
CITY OF SANTA MONICA )
) Date: March 7, 2023
Employer, )
)
(RE: Job Descriptions) )
____________________________________)
FACTFINDING PANEL
Impartial Chair
Anthony Miller
2020 5th St #2220
Davis, CA, CA 95616
Union Member
Benjamin Steers
1685 Main Street
Santa Monica, CA 90401
City Member
Ericka Reinke
1685 Main Street
Santa Monica, CA 90401
2 APPEARANCES
For the Union
Richard A. Levine, Esq.
Rains Lucia Stern
St. Phalle & Silver, PC
16130 Ventura Boulevard, Suite 600
Encino, CA 91436
For the City
Alexander Volberding, Esq.
Adriana Guzman, Esq.
Liebert Cassidy Whitmore
6033 West Century Boulevard, 5th Floor
Los Angeles, California 90045
INTRODUCTION
The parties, the Administrative Team Associates (Union) and the City of Santa Monica, selected the neutral factfinder, Anthony Miller, pursuant to the provisions of California Law. The Union appointed Benjamin Steers and the City appointed Ericka Reinke as their respective members of the factfinding panel. The panel conducted two days of hearing--August 19 and October 25, 2022—via Zoom. At the hearings the parties were afforded the opportunity to examine and cross-examine witnesses, introduce exhibits and propound arguments in support of their positions. Both parties submitted post hearing briefs at which time the matter was fully submitted. The parties agreed to waive statutory time limits.
3 RELEVANT STATUTORY PROVISIONS
California Government Code Section 3505.4
(a) The employee organization may request that the parties' differences be submitted to a factfinding panel not sooner than 30 days, but not more than 45 days, following the appointment or selection of a mediator pursuant to the parties' agreement to mediate or a mediation process required by a public agency's local rules. If the dispute was not submitted to mediation, an employee organization may request that the parties' differences be submitted to a factfinding panel not later than 30 days following the date that either party provided the other with a written notice of a declaration of impasse. Within five days after receipt of the written request, each party shall select a person to serve as its member of the factfinding panel. The Public Employment Relations Board shall, within five days after the selection of panel members by the parties, select a chairperson of the factfinding panel.
(b) Within five days after the board selects a chairperson of the factfinding panel, the parties may mutually agree upon a person to serve as chairperson in lieu of the person selected by the board. (c) The panel shall, within 10 days after its appointment, meet with the parties or their representatives, either jointly or separately, and may make inquiries and investigations, hold hearings, and take any other steps it deems appropriate. For the purpose of the hearings, investigations, and inquiries, the panel shall have the power to issue subpoenas requiring the attendance and testimony of witnesses and the production of evidence. Any state agency, as defined in Section 11000, the California State University, or any political subdivision of the state, including any board of education, shall furnish the panel, upon its request, with all records, papers, and information in their possession relating to any matter under investigation by or in issue before the panel.
(e) The procedural right of an employee organization to request a factfinding panel cannot be expressly or voluntarily waived. (d) In arriving at their findings and recommendations, the factfinders shall consider, weigh, and be guided by all the following criteria:
(1) State and federal laws that are applicable to the employer. (2) Local rules, regulations, or ordinances.
(3) Stipulations of the parties.
4 (4) The interests and welfare of the public and the financial ability of the public agency.
(5) Comparison of the wages, hours, and conditions of employment of the employees involved in the factfinding proceeding with the wages, hours, and conditions of employment of other employees performing similar services in comparable public agencies.
(6) The consumer price index for goods and services, commonly known as the cost of living.
(7) The overall compensation presently received by the employees, including direct wage compensation, vacations, holidays, and other excused time, insurance and pensions, medical and hospitalization benefits, the continuity and stability of employment, and all other benefits received.
(8) Any other facts, not confined to those specified in paragraphs (1) to (7), inclusive, which are normally or traditionally taken into consideration in making the findings and recommendations. (e) The procedural right of an employee organization to request a factfinding panel cannot be expressly or voluntarily waived.
FINDINGS OF FACT
1. The Union is the recognized employee organization representing 256 employees, all with some managerial or administrative responsibility, in over 100 job classifications.
Historically, all but three of the job classifications for employees who are represented by the Union have required a bachelor’s degree and work experience.
2. In 2021, the City’s Information Services Department and Public Works Department requested that the Human Resources Department review the minimum qualifications for two job classifications and add an alternative option wherein work experience may be substituted for the bachelor’s degree requirement.
3. To implement this proposal, the Human Resources Department followed the regular process for reviewing and modifying job specifications including the two that were 5 involved herein and concluded that the modification was appropriate. In addition, a new job class specification for the bargaining unit was created.
4. On April 16, 2021, the City presented to the Union the proposed changes in the classification for the position of Technology Training Coordinator. Under the heading of Minimum Qualifications, it includes the requirement of “Graduation from an accredited college or university with a bachelor’s degree in business, information systems, computer science or a closely related field.” In additions it states that two years of experience (beyond the three years’ experience required for all candidates) can substitute for the college degree: “Two additional years of work experience may substitute for the required bachelor’s degree. Professional experience in the field of public sector customer support, administration, or technology is desirable.”
5. On June 30, 2021, the City presented the proposed qualifications for the position of Software Developer. Under Minimum Qualifications, the classification lists graduation with a bachelor’s degree, but adds that two years of experience may serve as a substitute: “Graduation from an accredited college or university with a bachelor’s degree in computer science, computer technology, software engineering, information systems, or a closely related field. Two additional years of qualifying work experience may substitute for the bachelor’s degree requirement.”
6. On August 5, 2021, the City presented the proposed changes in the qualification for the position of Engineering Support Services Administrator. Under the heading of Minimum Qualifications, the revised classification added a provision which allowed years of experience to substitute for a bachelor’s degree: “Graduation from an 6 accredited college or university with a bachelor’s degree. Additional qualifying work experience may substitute for the educational requirement on a year for year basis. (Successful completion of 30 units is equal to one year of the additional required work experience.)”
7. The stated purpose of these proposals was based upon the view that possession of a degree requirement as a minimum qualification effectively precluded City Departments from considering, as part of the City’s recruitment and selection process, candidates who could perform the requisite job duties in each of the classifications
8. On August 10, 2021, attorney Elizabeth Silver Tourgeman, on behalf of the Union, stated the Union’s opposition to proposed revisions to the minimum qualification for the job classifications and stated the view that this was a mandatory subject of bargaining.
9. Subsequently the parties engaged in multiple negotiation sessions and the exchange of letters between Attorney Tourgeman and Sarah Rebensdorf, Acting Human Resources Manager.
10. In the course of negotiations, the Union made three proposals for settlement, and the City never made a counter offer or deviated from its original position regarding its proposed revisions of the minimum qualifications. Here is a summary of each proposal:
1. The Union would vest the City with the discretion to manage the degree requirement of the bargaining unit in exchange for educational incentive 7 pay in the amount of 8% of base salary for a bachelor’s degree and an additional 4.8% for those with a master’s degree.
2. The Union would agree to temporarily suspend the bachelor’s degree requirement where the applicant pool was insufficient.
3. The Union would agree to proposed changes in minimum qualification if work experience credit was commensurate with the number of years to obtain the college degree, the approach used for the Custodial Services Administrator.
11. During the negotiations, Ms. Rebensdorf, in an email to Ms. Tourgeman, stated that the changes in minimum requirements for the three classifications was “the goal of eliminating inappropriate barriers to employment that may negatively impact a qualified individual’s ability to obtain employment with the City. This may have the added benefit of improving diversity in our applicant pools.” Testimony at the hearing supported the view that the degree requirement was the barrier that was removed.
12. On February 15, 2022, following the period of negotiations, the City provided ATA its last, best, and final offer concerning the proposed revisions to the minimum qualifications to provide an alternative to a bachelor’s degree. The language concerning the work experience alternative in the last best and final offer is the same as the language in the original job class specifications submitted to the Union. Here are the relevant provisions verbatim:
1. Software Developer:
Graduation from an accredited college or university with a bachelor’s degree in computer science, computer technology, software engineering, information systems, or a closely related field. 8 Two additional years of qualifying work experience may substitute for the bachelor’s degree requirement.
Experience: Three years of recent, paid work experience designing and developing web content in a windows-based server
environment.
2. Technology Training Coordinator:
Education: Graduation from an accredited college or university with a bachelor’s degree in business, information systems, computer science or a closely related field.
Experience: Three years of recent, paid work experience in technology support, training and learning systems management.
Two additional years of work experience may substitute for the required bachelor’s degree. Professional experience in the field of public sector customer support, administration, or technology is desirable.
3. Engineering Support Services Administrator:
Education:
Graduation from an accredited college or university with a bachelor’s degree. Additional qualifying work experience may substitute for the educational requirement on a year for year basis. (Successful completion of 30 units is equal to one year of the additional required work experience.)
Experience:
Four years of recent, paid, and progressively responsible work experience providing general office management in public or private business work environment including two years of supervisory experience. One year of leading, coordinating or supervising the work of others and successful completion of the City of Santa Monica’s Pre-Supervisory Academy may substitute for the two years of supervisory experience.
13. On March 7, 2022 the City declared an impasse.
14. On March 25, 2022, ATA requested factfinding concerning the City’s proposed revisions.
STATUTORY REQUIREMENTS
California Government Code Section 3505.4 (d) requires that “the factfinders shall consider, weigh, and be guided by” a list of statutory criteria or factors. These factors are 9 fully set out above under the heading “Relevant Statutory Provisions.” While not all of these factors proved to be relevant to the present case, here are the Factfinding Panel’s response to all eight sections.
Section (1) which deals with state and federal law is only relevant in the present situation because the Union has accused the City of failing to bargain in good faith as required by California Government Codes section 3505. It is not the place of this panel to determine if the City has committed an unfair practice, but it is worthwhile to note that the panel has not viewed the City as having failed to negotiate in good faith. The city presented its first proposed change to the Union on April 16, 2021 and the third on August 5, 2021. On August 10, the Union informed the City that it considered the matter to be a mandatory subject of bargaining. After that, there were multiple meetings between the parties. Additionally, representatives of the parties exchanged several letters in which the Union and the City fully stated their positions. In addition, there were a number of informal conversations between representatives of the parties on these issues. The City did not present its last, best, and final offer until February 15, 2022. The Union points out that the City, in the course of these negotiations, never presented a counter offer to the Union proposals or modified its original position. While the refusal to make a counter proposal is one indicator of a failure to bargain in good faith, it is not a per se factor. The test for failure to bargain in good faith requires an examination of “all the surrounding circumstances.” In the present situation, the parties met, exchanged views, discussed the matter in meetings, letters, and personal conversations over a period of time. The City clearly attempted to explain its position to the Union. Moreover, the City has made no 10 attempt to unilaterally implement the changes that it has proposed. The only thing the City did not do was modify its position which, in and of itself, does not necessarily indicate a lack of good faith.
Section (2) requires consideration of local law and regulation. The Factfinding Panel has not found any local law or regulation relevant to the present situation. And, Section (3) concerning stipulations of the parties has not played a significant role in the present case other than the parties agreed to waive the statutory time limits.
Section (4) is relevant in that the City has asserted the “the interests and welfare of the public” as the main reason for the modification of the minimum requirement for the three classifications in question. The City view is that having the best possible pool of applicants for a position is in the public good and that, in regard to the three job classifications in question, there is the possibility that the proposed change in the minimum job requirement would enhance the application pool. While this is a credible assertion—a college degree does not ensure competence and competence can certainly be gained by real world experience—there is no evidence on the record herein that this result would be the case with these three classifications. Nevertheless, the Departments which will supervise employees in these classifications have requested these changes, and the City’s decision to implement this request is a judgment call and policy decision that the City is entitled to make.
Section (5) deals with issues of compensation which have not played a significant role in the Panel’s deliberation. While one of the counter proposals by the Union involved bonus compensation for the ATA employees who did have a college degree, the only 11 evidence presented regarding this proposal was that both the Police Department and the Fire Department in the City of Santa Monica had bachelor’s degree and Master’s bonuses for certain employees. This evidence was insufficient to justify any conclusion by the Factfinding Panel.
Section (6) regarding the consumer price index or cost of living and Section (7) regarding consideration of the overall compensation of the employees played no role in the deliberations of the Factfinding Panel.
Finally, Section (8) invites consideration of additional factors which are “normally or traditionally taken into consideration in making the findings and recommendations.” In the present case it has been important to consider the interests of the parties.
As discussed above in regard to Section (4), the City has a viable interest in increasing the pool of qualified candidates for City employment. Managers apparently noticed that there are employees and non-employees who have the qualifications to work in the classifications in question even though they do not have a college degree, and they recommended that the class specifications be changed. Management has denied that the purpose of these changes in the class specifications is intended to increase diversity in terms of those groups of people who have been and are discriminated against, but admitted that the change in the class specifications could have that effect. The Union has agreed with this assessment.
The Union’s interest, and indeed goals, in this situation appear to be long range rather than immediate. The evidence does not establish that in the short run much will change for the Union if the City’s proposal is implemented. The City will begin the process of hiring 12 employees to fill the classifications. There may or may not be candidates who meet the experience requirements, and such candidates may or may not be the best qualified. The evidence does not show that Union membership, dues, and ability to represent its members will immediately be threatened. The Union’s concern is that if the City is allowed to modify the present job classifications, it will continue to modify other job classifications or even all the job classifications in the bargaining unit represented by the Union; and, if this long range vitiation of the requirement for a college degree continues, the economic bargaining power of the Union on behalf of its members will be diminished. The Union’s concern in this regard is both genuine and credible.
Although the Union represents the employees in the Bargaining Unit, the employees have their own collective interest in the change in classification. It is reasonable to assume that some or maybe all of the employees in the bargaining unit, may believe that it is unfair that someone else may now have the same job without a college degree. College degrees cost a great deal in time, money, and effort. The employees may also believe that the importance of their degree and the job which formerly required a degree is now diminished, which could result in the vitiation of bargaining power in future negotiations.
That said, it does not appear that the employees in the bargaining unit have suffered any immediate compensable loss, and future losses through the vitiation of bargaining power is at this time speculative.
RECOMMENDATIONS FOR SETTLEMENT
The tripartite factfinding panel, consisting of Ms. Ericka Reinke (appointed by the Employer), Mr. Benjamin Steers (appointed by the Union), and Anthony Miller (neutral) 13 have carefully considered the evidence which has been presented to them and fully discussed all of the options that the parties have presented. The proposed recommendation of the panel is divided into two parts. The first proposal concerns the specifications for the three job classifications under consideration here: Software Developer, Technology Training Coordinator, Engineering Support Services Administrator. All of these new class specifications substitute work experience for the college degree. Software Developer and Technology Training Coordinator both substitute two years of additional work experience beyond the work experience requirement stated in the specification. The requirement for Engineering Support Services Administrator is more nuanced but, on its face, a less clear approach to substituting work experience for college credit. The recommendation for settlement is to modify all three class specifications to simply require four years of additional work experience as the substitute for a college degree. This proposal would make the requirement more comparable and, indeed, a fairer approach in that all classifications are treated equally.
The second recommendation for settlement concerns the long-range relationship between the parties. The Union has serious concerns about the future of the college degree requirement for all of the classifications in the bargaining unit, that over time the City will add experience criteria as a substitute for a college degree to all or most of the classifications. The Union can of course seek to bargain about each change in the job specification, and when the bargaining reaches impasse, it can go to factfinding. This process with be costly for both parties. One way to avoid this dispute resolution meltdown would be to change the parties’ approach to college degrees. Instead, of making a 14 college degree required for every classification, an experience requirement could be added to any classification the City deems appropriate, and the Union would waive its right to bargain on these changes to each classification. Such a waiver would be a significant concession to the City. In effect, the Union would be giving up its statutory right to bargain in good faith on wages, hours and terms and conditions of employment, the right which is fundamental to the labor management relationships since the time of the Wagner Act. In return for this waiver, the City would establish a yearly bonus for all members of the ATA bargaining unit who have a college degree in the amount of 3 per cent of their yearly salary. This bonus is not intended as compensation for economic loss by the members, but rather as a benefit which will be conferred on the employees because the Union has negotiated for them. There is of course precedent for this type of bonus in the City: both police officers and firefighters receive a yearly bonus if they have attained a college degree and, indeed, an additional bonus if they have a master’s degree.
SUMMARY OF RECOMMENDED SETTLEMENT
1. The City will modify its class specifications for the positions of Software Developer, Technology Training Coordinator, Engineering Support Services Administrator to require four years of additional experience instead of just two as the alternative to a college degree.
2. The Union will waive the right to modify additional bargaining unit classifications by a college equivalent of four years’ experience to any class specification for any position in the bargaining unit.
15 3. Members of the bargaining unit ATA who have a four-year college degree will receive an annual bonus of 3 per cent of their base salary.
RESPECTFULLY SUBMITTED,
Dated: March 7, 2023
___________________________________
Anthony Miller, Chair and Neutral Member
_________________________________
Benjamin Steers, Member Appointed by the Union
NOT JOINING IN THE RECOMMENDATION AND SUBMITTING SEPARATE REPORT Ericka Reinke
_______________________
Ericka Reinke, Member Appointed by the City
City of Santa Monica and Administrative Team Associates Case No. LA-IM-310-M
City of Santa Monica’s Representative to the Factfinding Panel Ericka Reinke
Clarification of Points in the Factfinding Panel’s Report and Dissent to the Recommendations of the Neutral Factfinding Panel Chair and the Administrative Team Associates’ Panel Member Pursuant to California Government Code section 3505.4 and 3505.5:
As the City of Santa Monica’s (“City”) representative to the Factfinding Panel for the present dispute between the City and the Administrative Team Associates (“ATA”), 16 I respectfully dissent as to each of the settlement recommendations made by the neutral Factfinding Panel Chair, Mr. Anthony Miller, and ATA’s representative to the Panel, Mr.
Benjamin Steers (hereinafter referred to as “Majority Settlement Recommendations”).
I. Clarification of Points in the Factfinding Panel’s Report The Factfinding Panel’s Report includes several points that merit clarification:
Point #1 – The City Did Not Refuse to Provide a Counterproposal to ATA Proposal The Factfinding Report characterizes the City as refusing to provide a counterproposal to ATA proposals. (See Factfinding Report, p. 6.) This point is inaccurate and mischaracterizes the City’s maintenance and restatement of its initial proposal.
At the beginning of the negotiations between the parties on these classification specifications, the City made a proposal to ATA concerning revisions to the minimum qualifications for the job classifications at issue in order to allow qualified candidates to be considered for employment in those positions without regard for their possession of a college degree. The City’s proposal, developed in conjunction and consultation with the subject matter experts in the City Departments that employ employees in these classifications, allowed individuals with a certain amount of relevant experience to satisfy the minimum qualifications for employment with such experience rather than by demonstrating possession of a college degree.
In response to the ATA counterproposals (See Factfinding Report, p. 6), which either did not adequately address the City’s concerns about removing inappropriate barriers to employment (e.g., required additional relevant experience which exceeded what was necessary to perform the job) or imposed additional conditions on the City that were not related to the narrow issue being negotiated (e.g., required significant additional compensation to employees with college degrees), the City maintained and restated its initial proposal.
The City is lawfully entitled to maintain adamantly its position in bargaining, so long as it explains the reasons for its position and otherwise bargains in good faith.
During the negotiations, the City discharged its obligations under the law and explained its position concerning the proposed revisions.
Specifically, the City explained that its position was intended to remove barriers to employment (i.e., remove minimum qualification requirements regarding the possession of a college degree, oppose counterproposals that required more 17 experience than was necessary to perform the job) which inappropriately excluded or would inappropriately exclude otherwise qualified candidates from consideration for employment. The City explained that its position, which it adamantly maintained and restated throughout the negotiations, would benefit the City departments that employ employees in these job classifications by providing those Department additional candidates to consider for employment.
The City further explained that its positions would in turn benefited the City as a whole and the public served by the City.
The Factfinding Report’s characterization of the City’s action as amounting to a refusal to provide a counterproposal is inaccurate.
II. Dissent to the Factfinding Panel’s Majority Settlement Recommendations The Factfinding Panel’s Majority Settlement Recommendations and my Dissenting Recommendations are as follows:
Settlement Recommendation #1
Factfinding Panel’s Majority Settlement Recommendations:
The City will modify its class specifications for the positions of Software Developer, Technology Training Coordinator, Engineering Support Services Administrator to require four years of additional experience instead of just two as the alternative to a college degree.
The City’s Dissenting Recommendation:
The City should implement its last best and final proposal to ATA on this subject.
The City should not modify the classification specifications for Software Developer, Technology Training Coordinator, Engineering Support Services Administrator classifications in the manner that the Factfinding Panel recommends.
The City’s last best and final offer concerning the experience necessary to perform the duties for each of these job classifications reflects the opinions of the subject matter experts in the City Departments that employee City employees in these classifications.
A “year for year” experience-for-education requirement is not appropriate for the classifications at issue. Imposition of the Factfinding Panel’s recommendation 18 would present an inappropriate barrier to entry for prospective employees who may, as a result of their experience, be able to perform the duties associated with the job classifications without the additional experience required under the Factfinding Panel’s proposal.
Settlement Recommendation #2
Factfinding Panel’s Majority Settlement Recommendations:
The Union will waive the right to modify additional bargaining unit classifications by a college equivalent of four years’ experience to any class specification for any position in the bargaining unit.
The City’s Dissenting Recommendation:
The City should not modify the classification specifications in the ATA bargaining unit as recommended by the Factfinding Panel.
As provided above, a “year for year” experience-for-education requirement is not necessarily appropriate for all the classifications in the bargaining unit. Where such requirement is not appropriate, imposition of the Factfinding Panel’s recommendation would present an inappropriate barrier to entry for prospective employees who may, as a result of their experience, be able to perform the duties associated with the job classifications without the additional experience required under the Factfinding Panel’s proposal.
Further, the City does not request that ATA waive its right to participate in the established City process for reviewing and revising classification specifications.
The City values ATA’s contributions to this process.
Settlement Recommendation #3
Factfinding Panel’s Majority Settlement Recommendations:
Members of the bargaining unit ATA who have a four-year college degree will receive an annual bonus of 3 per cent of their base salary.
The City’s Dissenting Recommendation:
The City should not modify the compensation for the employees in the ATA bargaining unit as recommended by ATA and the neutral party’s shared recommendation.
19 The Factfinding Panel’s recommendation is unnecessary and would create inequity between comparably situated employees who possess the same or substantially similar capacity to perform the requisite duties for their jobs.
Throughout the City’s negotiations with ATA, the City maintained its opposition to providing additional compensation to bargaining unit members who satisfy the minimum qualifications by possessing a college degree, rather than by possessing addition relevant experience. The City maintains that ATA failed to articulate any material harm that would actually impact its members with the mere option to have a separate pathway to qualifying for a position.
Lastly, compensation is based on many factors. The job functions, knowledge, skills, abilities and the labor market are considered. Further, things change. The market changes and we must be flexible not only as an employer but as those who serve the community of Santa Monica.
I believe everything the City has provided up until this point sufficiently justifies our position and I cannot agree with the recommendation of the Neutral Factfinder Panel Chair and ATA Panel Member.
Respectfully Submitted,
Ericka Reinke, City of Santa Monica Factfinding Panel Member