Seniority argued in open grievance hearing


Irvin Trigueros

From left, Chancellor Helen Benjamin and governing board members Greg Enholm, John Marquez, Sheila Grilli and John Nejedly listen to Eric Smith’s (top photo) greivance on April 24 at the district office in Martinez.

Peter Costanza

Eric Smith, a custodian at Diablo Valley College (DVC), filed a formal grievance with the Contra Costa Community College District Jan. 18 that could impact how custodians bid for their work-stations at all district locations, including Los Medanos college. Smith finally reached the sixth floor of the district office April 24 in the final stage of the grievance process that is usually heard in closed session but, at Smith’s request, the hearing was open to the public. A decision will be made within 15 days of the hearing.

John Nejedly, secretary of the district governing board said “this is the first time since I been here, 18 years, that we have somebody do it in public. I think it’s helpful for everybody to have this discussion this way.”

The claim, according to the grievance document filed with Chris Leivas, vice president of Finance and Administration, read: “my seniority was wrongfully denied when it was time to bid on custodial work stations.”

The document continued outlining Smith’s argument of how current practice of workstation bidding violated his interpretation of the 2010-2013 union contract.

The word “seniority,” or in this case the definition of seniority, is at the heart of the dispute Smith has with Public Employees Union, Local 1 (PUE) and the district. Smith’s interpretation of the union contract is that seniority is based on how long you have worked in the district or – a specific classification.

“The college’s interpretation of article 17.2.1 is that seniority is based on continuous seniority at the college,” said Leivas in a response letter that denies Smith’s original grievance request, dated Jan 25.

Once a year custodians get to rebid for workstation assignment on their campus and the one who gets first choice is determined by seniority. The process is outlined in Article 17 of the union contract.

Article 17.2 under the heading: Custodians/grounds work stations and custodial shifts, reads: once the district revises/reestablishes work areas/stations, employees shall, within five (5) work days, be given the opportunity to bid on all current stations. The most senior employee at the work location shall be placed into the station of his/her choice. This process shall be followed until all stations are filled.

“The contract does not say consecutive term … most senior could mean… accumulative term. Most senior could mean the oldest person on campus, there is no definition,” said Smith. “For them to just arbitrarily throw a definition on it, when it could be several, doesn’t make sense to me. Now what makes sense is Article 22, the article about seniority.”

Article 22 reads: The parties agree that seniority in the District or in the classification is based on hire date in the district or classification.

Unit President of PUE local 1 explains why Article 22 is in the contract.

“Ed code requires all contracts to have that statement in it, and its application is really only for layoffs,” said West.

Smith was hired in the district in 1987. He worked three years as a custodian at Contra Costa Community College (CCC) before taking a higher job classification as a Shop Equipment Assistant on the same campus. For two decades he worked in that department until his position was scaled back in 2010.

“After 20 years in the auto shop they cut the position in half. So to survive… I went back to custodial,” said Smith.

The only position open in the custodial department was at DVC. When he got to DVC two other people started the same day, and Smith explained how they determined who had the most seniority at that time – the luck of the draw.

“I had like 23 years at that time, somebody had about six years, and somebody had about five years. We had to draw straws. I drew the shortest… the guy with six years was in the middle, the guy with four or five years, out of us three, had the highest seniority,” said Smith.

Smith said when he was initially hired, the way custodians picked stations was done differently — the person with the most district seniority had first dibs on what work station they preferred, and that is in line with the union contract since nowhere in the contract does it says site seniority according to Smith’s interpretation.

West says that the union’s interpretation is the way it is being implemented now and has been for some time.

“The interpretation and the application of senior at location from the business agent that wrote that language, who was a custodian, meant the person that is the most senior at that location,” is the one who has worked at that particular campus the longest, West explained, adding that even though there are examples in the past of a different process, they have no effect on the union’s and district’s current interpretation of the contract.

“Somebody at some point before me decided they wanted to reward people that stay at a location for their length of service, they wanted to give those people a reward,” said West. “There are examples of where it was misapplied. I believe the violation was on the management side, it was not on the employee side. The employees that this was done for basically violated the language in the contract. Those managers are nowhere in the district now, at that site and those employees were happy with the way it was applied so they kept quiet about it.”

A vote to determine the interpretation of the wording in Article 17 was conducted in September 2012. Before the election West said he spread the word about the issues. Smith said he offered to attend each Brown Bag lunch meeting and explain his own position but was told the union would be able to explain both sides fairly.

“We have what’s called a brown bag series so every month. I go by the custodial areas and we have a meeting,” said West. “Since April 2012 I have been talking about this issue. The custodians decided they wanted to do a vote to help clarify or change the language if they so choose, because Eric has some very good points. When you are bumped from one site to the next you go to the bottom of the bid list and is that fair?”

Smith said he feels the custodians may not have understood the ramifications of this decision, and the vote should not be sanctioned because the language should be defined in negotiations, not in a vote.

“I feel that if you are going to change something that major you should change it in negotiations,” said Smith adding, “I understand why a person would want to do that but what they don’t understand, in my opinion, is that it weakens the contract and if something happens later on in the future when you’re older and less able to do some of this stuff, you’re put in a bad position.”

During the hearing board member Vicki Gordon, trustee of Ward 2, let it be known that negotiation is the route Smith would have to take to see any change of the current interpretation.

“Your points are well made. I understand what you are saying but I’m not sure that they belong here,” said Gordon. “I think my point is, it seems that everybody has followed through with how it’s been done for a long time and that perhaps a way for you to add change is to get involved in the union and clarify some of the language.”

After Smith presented his case in the hearing, Huff argued on behalf of the district and Local 1.

“Mr. Smith has laid out a reasonable interpretation of the contract language, a very viable definition of seniority and what site seniority might be. But that is not what has been negotiated, that is not the interpretation of the contract language,” said Huff.

Huff said the district also looked at the application of Article 22, how it is relevant to Article 17 and explained why it is included in the contract.

“Article 22 talks about seniority, classification and hire date and that’s for ed code purposes, determining the layoff and reemployment rights that an employee has,” said Huff.

Huff continued his rebuttal to Smith’s grievance explaining that they have a different interpretation than Smith.

“I would note, most importantly to me as someone who actually interprets contracts regularly for the district, that is my job. Article 17 talks about site seniority, so just to emphasize, site seniority, is nowhere in Article 22,” said Huff. Adding “we agree to Mr. Smith’s notion, that he has a very legitimate interpretation, it is just not the agreed-upon terms.”

After the hearing Smith wasn’t hopeful about the pending outcome.

“I expect them to deny my grievance,” said Smith adding “once Local 1 sided with the school district, I basically knew it was over with, but it wasn’t going to stop me from carrying it out to this conclusion, making sure people hear what I have to say.”

Smith said the next step in his fight is to take his case to the union board at the first opportunity he gets.