MEMORANDUM OF UNDERSTANDING
COUNTY OF SANTA BARBARA AND
SANTA BARBARA COUNTY FIRE FIGHTERS, INC., LOCAL 2046

SECTION 38. Grievance Procedure

A. Purpose

1. To promote harmonious employer-employee relations by establishing a grievance procedure to afford employees, individually or through a qualified representative, a systematic means of obtaining consideration of complaints and disputes which constitutes grievances as hereinafter defined.

2. To enable grievances to be settled as promptly and as closely to the point of origin as possible.

B. Definition

A grievance shall be defined as a claim by an employee or group of employees of an alleged violation, misinterpretation or misapplication of this Memorandum of Understanding, written Departmental or County ordinances, rules, regulations, policies or procedures or any other written agreement between the parties applicable to the employee, except for:

Those issues that provide their own means of administrative or judicial review such as, but not limited to, Civil Service Commission, Workers' Compensation, Occupational Safety and Health Act, Affirmative Action, Fair Employment Practice Commission, Equal Employment Opportunity Commission and Retirement Board matters.

C. Basic Rules

1. The procedure in this section shall be the exclusive means for the disposition of all written grievances arising under this Memorandum of Understanding, and the County shall not be liable to the Union or to any employee in any respect except as may be determined under said procedure.

2. Non-discrimination - Any employee represented by the Union may file a grievance or may authorize by signature the filing of a grievance on his/her behalf without fear of restraint, interference, coercion, discrimination or reprisal.

3. Grievance Forms
a. Grievance forms shall be made available to the employee through the Department, and the Union, and all formal grievances shall be submitted on these forms. The Union may develop an alternative form, however, such form must be approved by the County.

b. Grievance forms must explicitly specify the particular section of this agreement which is being alleged as the basis for the grievance. The remedy requested must also be specified.

4. No modifications in the basic violation being alleged pursuant to section (3) (b) shall be made subsequent to filing unless mutually agreed to by both the County and the grievant or his/her representative. However, corrections in citations or other clarifying amendments can be made at any time by the grievant or his/her representative.

5. Notice of Meetings - Whenever possible, both the County and the employee or his/her representative shall give notice of meetings and conferences to their respective representative at least twenty-four (24) hours prior to any meeting regarding a grievance.

6. Right of Representation
a. The employee has the right to the assistance of no more than two representatives in the preparation and/or presentation of a grievance, provided, however, that supervisory employees shall not represent non-supervisory employees where such activity would result in a conflict of interest.

b. An employee is also entitled to represent himself/herself individually at any step of the Grievance Procedure.

c. An employee may not change his/her designation of representative organization, other than designating himself/herself, during the processing of a grievance except by mutual agreement of the parties.

d. If the employee is represented in a formal grievance meeting, the department may also designate a management representative to be present.

7. Grievance Withdrawal - The employee may withdraw the grievance at any stage of the Grievance Procedure by giving written notice to the County representative who last took action on the grievance, with a copy to the Human Resources Department and the Union.

8. Grievance Resolution - If a grievance is resolved at Step 2, 3 or 4 in the Procedure as provided in section E herein, the employee concerned shall indicate acceptance of the resolution by affixing his/her signature in the appropriate space indicated.

9. By mutual agreement, the parties may return the grievance to a prior level for reconsideration. If the grievance is not then settled at the prior level, the employee shall continue to have the rights set forth in this Procedure.

10. Consolidation of Grievances - Employees with essentially identical grievances, including remedy, may initiate a single grievance. Employees with essentially identical grievances may be required, at the County's discretion, to consolidate to a single proceeding at Steps 4 and 5 of this Grievance Procedure.

D. Processing Grievances

1. The employee and/or his/her representative shall be granted reasonable time off with pay from regularly scheduled duty hours to process a grievance, provided that the time off will be devoted to the prompt and efficient investigation and handling of grievances, subject to the following:

a. Representatives
(1) Insofar as possible, when an employee representative at Steps 1 and 2 is a County employee, the representative shall be employed in the same work location as the grievant. When the foregoing condition cannot be met, an employee representative who is a County employee may be employed outside the same work location, provided said representative is no longer than forty-five (45) minutes away, by the most practical and common mode of transportation, from the grievant's work location. This time limit may be waived by mutual agreement of the parties when the grievant is assigned to a remote work location, or under other unusual circumstances.

b. Grievance Preparation
(1) An employee or his/her representative who is a County employee shall not leave his/her job to perform any grievance preparation work unless he/she receives permission from his/her supervisor.

(2) When an employee or his/her representative must go into a section, department or work unit to investigate a grievance, he/she shall be permitted to do so, provided he/she explains the purpose of the visit and whom he/she is visiting to the supervisor of said section, department or work unit.

c. Grievance Meetings
(1) An employee or his/her representative who is a County employee shall, upon notification of his/her supervisor, be granted time off to attend grievance meetings scheduled pursuant to Section E of this Procedure.

(2) An employee or his/her representative who is a County employee shall notify his/her supervisor as soon as possible in advance of the dates and times and/or any change in the dates and times of scheduled grievance meetings in which he/she must participate.

d. An employee or his/her representative, when said representative is a County employee, shall not log compensatory time earned or premium pay time for any time spent in the processing of a grievance.

2. Time Limitations
a. The time limitations contained herein are designed to quickly settle a grievance. Time limitations may be extended by agreement of the parties.

b. If at any stage of the Grievance Procedure the employee is dissatisfied with the decision rendered, it shall be the employee's responsibility to submit the grievance to the next designated level of review within the time limits specified.

c. Failure to submit the grievance within the time limits specified shall terminate the grievance process and the grievance shall be considered resolved.

d. The employee may proceed to the next step within the prescribed time limits if the appropriate management representative fails to respond within the time limits specified.

E. Grievance Procedure Steps

1. Step 1 - Informal Discussion with Supervisor

a. The grievance shall first be discussed on an informal basis by the grievant and his/her immediate supervisor within ten (10) calendar days from the date of the action causing the grievance, or date of discovery of such action, except that in no event shall any grievance be accepted for consideration more than one (1) year from the action claimed as its basis, regardless of the date of discovery.

b. Every effort shall be made to resolve the grievance at this level, and may include conferences among supervisory and administrative personnel. The immediate supervisor shall verbally respond to the grievant with ten (10) calendar days of the informal discussion between grievant and supervisor.

2. Step 2 - Written Grievance

a. In the event the employee believes the grievance has not been satisfactorily resolved, the employee shall submit the grievance in writing to the supervisor within ten (10) calendar days after the receipt of the immediate supervisor's verbal response. The employee shall file one (1) copy with the Human Resources Department and with the Union.

b. In larger departments, it may be necessary to involve the division or section head in the processing of the grievance at this level. In such departments, it shall be the responsibility of the employee to file one copy of his/her grievance with said division or section head at the initiation of Step 2. It shall be the responsibility of the supervisor to consult and involve the division head in any or all grievance meetings and in arriving at a written response to the aggrieved employee.

c. Within ten (10) calendar days of receipt of the grievance, the immediate supervisor shall schedule a meeting with the employee to discuss the grievance. Within ten (10) calendar days of the grievance meeting, the immediate supervisor shall deliver his/her written decision to the grievant and his/her representative. Should the written decision of the supervisor propose a solution to the grievance, it shall be reviewed and approved by the department head prior to delivery to the employee.

3. Step 3 - Department Head

a. In the event the employee believes the grievance has not been satisfactorily resolved, the employee shall submit the grievance in writing to the department head within ten (10) calendar days after receipt of the immediate supervisor's written response.

b. Within five (5) working days after receiving the completed grievance form, the department head or his representative shall meet with the employee to discuss the grievance. The department head shall deliver his written decision to the employee and his/her representative within ten (10) working days after the discussion.

4. Step 4 - County Executive Officer

a. In the event the employee believes his/her grievance has not been satisfactorily resolved, he/she shall submit the grievance in writing to the County Executive Officer within seven (7) working days from receipt of the department head's written response. A meeting of the parties may be held by mutual agreement of the parties.

b. Within ten (10) working days from receipt of the grievance, the County Executive Officer shall deliver his written decision to the employee and his/her representative.

5. Step 5 - Advisory Arbitration

a. If the grievance is not settled or disposed of at Step 4, the grievance may be submitted within ten (10) calendar days to the Assistant CEO/HR Director who shall arrange for advisory arbitration. The arbitrator shall be selected from a panel provided by the State Conciliation Service. The hearing shall be conducted in accordance with the rules and regulations of the American Arbitration Association unless the parties mutually agree to other rules or procedures.

b. Except as indicated in subsection "e" below, the fees and expenses of the Arbitrator shall be shared equally by the parties involved. All other fees and expenses including, but not limited to, those for witnesses, transcripts, and similar costs incurred by the parties during arbitration, will be the responsibility of the parties individually. When the grievant is representing himself/herself, he/she shall be solely responsible for his/her share of such fees and expenses.

c. Not more than one grievance shall be submitted to arbitration in the same proceeding without the consent of the parties, except that grievances based on the same set of facts which must necessarily be decided in the same way can be submitted in a single arbitration, subject to the consent of the parties.

d. The County and the Union shall endeavor to prepare a submission agreement, setting forth the issue or issues to be submitted to arbitration and any stipulated relevant facts and principles. In the event of disagreement between the County and the Union, the issue or issues of the grievance shall be determined by the Arbitrator.

e. In the event that there is a dispute as to arbitrability, the arbitrator shall hear that issue prior to opening the record on the merits of the dispute. If the arbitrator determines that the issue is not arbitrable the grievance will be dismissed and the matter considered closed. If the arbitrator determines that the issue is arbitrable, the matter will then be set for hearing on the merits. The cost of the arbitrator for this phase of the process shall be borne by the grievant.

f. For the purposes of the arbitration the Arbitrator shall have jurisdiction and authority to interpret the specific terms and provisions of this Memorandum of Understanding, written Departmental or County ordinances, rules, regulations, policies or procedures and any other written agreement between the parties.

Only those grievances which directly concern or involve the interpretation or application of the specific terms and provisions of this Memorandum of Understanding, written Departmental or County ordinances, rules, regulations, policies or procedures or any other written agreements between the parties may be submitted to arbitration hereunder. In no event shall such arbitration extend to:

1. The interpretation, application, or legality of any federal, state or local law, or the legality of any ordinance or resolution adopted by the County's Board of Supervisors; however, if the Arbitrator, in his/her discretion, finds it necessary to interpret or apply such federal state or local law or ordinance or resolution in order to resolve the grievance which has been submitted to arbitration, he/she may do so.

2. The interpretation, application, or legality of any or all of the County of Santa Barbara Civil Service Commission Rules, nor matters under the jurisdiction of said Civil Service Commission for which the Commission has established procedures or processes by which employees may appeal to, or request investigation or review by, said Civil Service Commission; however, if the Arbitrator, in his/her discretion, finds it necessary to interpret or apply such Civil Service Rules or matters under the jurisdiction of said Civil Service Commission in order to resolve the grievance which has been submitted to the Arbitrator, he/she may do so.

3. The legality of the rules or regulations of the department head, or the County Executive Officer, or any other County agency or commission; however, if the Arbitrator, in his/her discretion, finds it necessary to interpret or apply such rules or regulations in order to resolve the grievance which has been submitted to the Arbitrator, he/she may do so.

6. Step 6 - Board of Supervisors' Final Decision

The Arbitrator's decision and award provided for in Step 5 shall be final and binding on the parties UNLESS the Board of Supervisors, by majority vote, votes to set aside the decision and award of the Arbitrator within forty (40) calendar days from the date of their issuance. In such event, the Board of Supervisors shall deliberate concerning the grievance and, within a reasonable period of time (not to exceed forty (40) calendar days), shall arrive at a decision which shall be final and binding. Before such deliberations, the County Executive Officer, or his/her designated representative, and the Union representative or the grievant shall present arguments concerning the grievance to the Board of Supervisors. Where possible, such arguments shall be made within thirty (30) calendar days from the date of the issuance of the Arbitrator's award. In the event the Board sets aside the decision and award of the Arbitrator, the County shall pay the arbitrator's fee, but each party to the arbitration will remain responsible for its own expenses and costs of arbitration.

SECTION 39. No Strike Clause

Employees represented by the Union shall not take part in any strike, work action, or other concerted activity of any kind which will result in curtailing, restricting, or interfering with the work of the Fire Department or other County services.

The Union agrees not to sanction, encourage, or support any strikes, work actions, or other concerted activity.

The term "strike, work action, or other concerted activity" means any concerted failure to report for duty, any concerted absence from position, any concerted stoppage of work, any concerted slowdown, sick-out, refusal to work, interruption, call-in, or failure in whole or in part to carry out the full, faithful, and proper performance of the duties of employment. The term "strike, work action, concerted activity" also means any participation in an action interfering with the operation of the Fire Department or the County for the purposes of inducing, influencing, or coercing a change in the working conditions, compensation and rights, privileges, and obligations of employment.

In the event that a strike, work action, or other concerted activity occurs in violation of this agreement, the Union shall on written notice by the County issue a statement addressed to the employees, a copy of which shall be delivered to the County, declaring the strike or other concerted activity not sanctioned, unlawful, and directing them to return to work or cease and desist.

SECTION 40. Civil Service Rule Changes

Prior to implementing any change in the Civil Service Rules which affects matters within the scope of representation, the County will provide the Union with an opportunity to meet and confer.

SECTION 41. Underfilling

The County reserves the right to appoint individuals in accordance with the County underfilling policy (as may be superseded by a Civil Service Rule regarding underfilling), subject to the following limitations:

1. Non-supervisory class individuals not fully qualified in a supervisory class shall not supervise or give direction to individuals in a supervisory class. However, a non-supervisory class individual may serve as a lead worker with respect to individuals in non-supervisory classifications.

2. Duration of an appointment pursuant to the underfilling policy shall not exceed two years from date or appointment.

3. Appointments pursuant to the underfilling policy shall be limited to administrative support positions (except Training) and non-supervisory positions in the Fire Protection and Office of Emergency Services Divisions.

4. Underfilling appointments shall be limited to one classification below the authorized classification.

SECTION 42. Driver License Requirements

The following provisions supplement Department policy Section 516.10 (Driver's License) and shall apply to those employees required to possess a valid California Driver License in order to perform their job duties.

1. It is the responsibility of affected employees to maintain required licenses. An employee who becomes unable to drive for any reason, including but not limited to, lapse, suspension or revocation of a driver license, shall promptly inform his/her appointing authority.

2. Loss of Driver License for Other Than Medical Reasons

An employee who loses his/her driver license for other than medical reasons is subject to non-disciplinary separation in accordance with Civil Service Rule 1103, provided however, in circumstances in which the employee loses driving privileges for a period of no more than one year, the appointing authority may at his/her discretion (provided that in exercising this discretion the department head shall not act in an arbitrary or capricious manner) offer one or both of the following options to non-disciplinary separation:

A. Where deemed feasible within the sole determination of the appointing authority, the employee may be reassigned to duties within the classification not requiring the employee to drive.

B. The employee may receive a leave of absence without pay for the period during which the employee is not licensed to drive.

An alternative to non-disciplinary separation (either A or B above) shall be available to an employee no more than once during his/her employment with the County.

3. Loss of Driver License for Medical Reasons

An employee who loses his/her driver license for medical reasons shall have his/her medical status reviewed to determine whether a temporary reassignment or other reasonable accommodation is warranted. If a temporary assignment or other reasonable accommodation is not available, the employee's status shall be determined in accordance with applicable Civil Service Rules and the law.

4. Irrespective of Paragraphs 2 and 3 above, an employee who loses his/her driver license may request voluntary demotion or transfer to a non-driving classification in accordance with Civil Service Rules 711 and 1102.

SECTION 43. Drug and Alcohol Reasonable Suspicion Testing Policy

The parties agree to modify the current department policy (Section 503.15) as follows:

A. Page 4/Procedures -- combine steps 1 and 2:

Supervisors who have reasonable suspicion that an employee's impaired performance is the result of drugs or alcohol shall, through the chain-of-command, request the authority of the Fire Division Chief or Duty Chief for drug/alcohol testing. A non-supervisory employee who has reasonable suspicion that a supervisory employee's impaired performance is the result of drugs or alcohol may, through the chain-of-command, request the authority of the Fire Division Chief or Duty Chief for drug/alcohol testing.

B. Page 6/Battalion Chief/Section Head - delete paragraph 2.B.

By agreeing to the above changes, the Union does not waive any rights employees may have to representation.

SECTION 44. Transitional Work Program

The parties agree to continue the Fire Department’s Transitional Work Program Policy as set forth in the Attached Addendum.

SECTION 45. Automatic Payroll Deposit

All employees covered by this Agreement shall participate in the County's automatic payroll deposit program. Participation shall mean the employee's execution of a payroll authorization form and submission of a voided check or savings deposit slip to the Auditor's office. It shall be the employee's choice as to which bank he/she designates as the institution receiving the payroll funds.

When both the authorization form and bank deposit slip are properly executed and filed with the Auditor, the County shall automatically deposit in the employee's designated bank account the net amount of pay each designated biweekly payday.

SECTION 46. Overpayments

When an employee is overpaid, the employee will be notified of the amount due to the County. If the amount is less than $100, it will be paid back by deduction from one biweekly payroll. If the amount is between $100 and $1300, the employee will have $50 per pay period deducted from his/her payroll check until paid in full, If the amount is greater than $1300, it will be repaid at $100 per pay period through payroll deduction until the balance is paid in full.

SECTION 47. Payroll Simplification

During the term of this agreement, the County may reopen negotiations on the issue of payroll simplification and/or modifications in compensation structure precipitated by the implementation of a new human resources and payroll system. If the County reopens negotiations on this subject the proposed changes will not be implemented unless the parties mutually agree.

SECTION 48. Leave of Absence Policy

During the term of this agreement, the County may reopen negotiations on the issue of a comprehensive leave of absence policy and related changes in terms and conditions of employment. If the County reopens negotiations on this subject, the proposed changes will not be implemented unless the parties mutually agree.

SECTION 49. Meet and Confer During Term

During the term of this agreement and if based on financial need, the County may reopen negotiations on negotiable staffing issues, regardless of whether the subject is covered in this Memorandum of Understanding. The subjects of the reopener may include Constant Staffing (see for example Section 9 of the Memorandum of understanding, §501.60 of the PPM) and Minimum Staffing (see for example §513.26 of the PPM).

The parties shall commence negotiations within 10 days after the County's request to negotiate and shall continue to negotiate thereafter as expeditiously as possible.

SECTION 50. Waiver

Except as otherwise expressly provided in this Memorandum of Understanding or where the parties mutually agree to meet and confer on a matter, the County and the Union expressly waive and relinquish the right and each agrees that the other party shall not be obligated during the term of this Memorandum to meet and confer with respect to any subject or matter including mandatory subjects of negotiation, whether referred to or covered in this Memorandum of Understanding or not specifically referred to and covered in this Memorandum of Understanding, and even though such subjects or matters were proposed and later withdrawn.

SECTION 51. Severability

If any provision of this Memorandum of Understanding, or the application of such provision, should be rendered or declared invalid by any court of competent jurisdiction or by reason of any existing or subsequently enacted legislation, the remaining parts or portions of this Memorandum of Understanding shall remain in full force and effect.

SECTION 52. Renegotiation

Either County or Union may serve notice to meet and confer concerning possible changes in the provisions of this agreement. Such notice shall be submitted in writing sixty days (60) prior to the termination date of this agreement. It is the intent of the parties to conduct negotiations in such a manner as to reach a new agreement on or before the termination date of this agreement. If either party timely serves notice to meet and confer, the first negotiating session shall not commence earlier than sixty days (60) nor less than thirty days (30) prior to the termination date of this agreement, unless the parties mutually agree otherwise.

SECTION 53. Continued Discussion

During the term of this agreement, the parties may meet to discuss the following issues:

SECTION 54. Term

This Memorandum of Understanding shall become effective April 24, 2006, and shall continue in effect for the period up to and including March 7, 2010. It is the intent of the parties that this Memorandum of Understanding be administered in its entirety in good faith during its full term.