8.0 - 8.7 GRIEVANCES.docx

SECTION 8.0 GRIEVANCES Management and the League have a mutual interest in resolving workplace issues appropriately, expeditiously and at the lowest level possible. In recognition of this mutual 80 MOU24-22 interest, the parties acknowledge that the grievance process is not a replacement for daily...

SECTION 8.0 GRIEVANCES Management and the League have a mutual interest in resolving workplace issues appropriately, expeditiously and at the lowest level possible. In recognition of this mutual 80 MOU24-22 interest, the parties acknowledge that the grievance process is not a replacement for daily communication between the employee and the supervisor, nor is it inherently an adversarial process. Rather, it is a process to mutually resolve workplace issues to the maximum extent possible within the organization. ARTICLE 8.1 DEFINITIONS A grievance is defined as a dispute concerning the interpretation or application of this written MOU or departmental rules and regulations governing personnel practices or working conditions. B. A grievant is defined as any employee who is affected by a grievance, the grievant and representative, if any, or the League when the grievance affects a class or group of employees. ARTICLE 8.2 MATTERS NOT GRIEVABLE OR ARBITRABLE A. Matters that are not subject to this grievance procedure, or to arbitration, include the following: 1. An impasse in meeting and conferring. 2. Transfers, assignments, promotions, promotional examinations, probationary terminations of entry-level or tenured employees, and Employee Comment Sheets (comment cards). These matters are not grievable or arbitrable whether or not said matters involve discipline. 3. Any other matter involving discipline. 4. A determination of the fitness of an employee to carry a concealable firearm on or off duty. 5. A determination of the appropriate salary step of probationary employees based on education and/or prior law enforcement experience. 6. Denial of the use of compensatory time off. B. These matters are to be dealt with solely by the following procedures: 1. Discipline for permanent employees who have successfully completed their probationary period shall be through Charter Section 1070 or by the Administrative Appeal Procedure, Section 9.0, depending on the penalty assessed. 81 MOU24-22 2. Probationary terminations of entry-level employees involving a liberty interest and probationary terminations of tenured employees shall be through the Administrative Appeal Procedure, Section 9.0. 3. Transfer for the purposes of discipline by the Administrative Appeal Procedure, Section 9.0. 4. Promotional examinations by appeal to the Civil Service Commission. 5. The fitness of an employee to carry a firearm may be appealed to the Chief of Police. If not satisfied at the Chief of Police level, an appeal may be made to the Police Commission, which is the final level of administrative appeal. An appeal pursuant to this provision shall be filed on an Administrative Appeal, Form 1.84. It shall be filed with the Director, Office of Support Services, when it is appealed to the Chief of Police. 6. The appropriate salary step of probationary employees based on education and/or prior law enforcement experience may be appealed to the Commanding Officer, Personnel Group, whose decision shall be final. An appeal pursuant to this provision shall be filed on an Administrative Appeal, Form 1.84. It shall be filed with the Commanding Officer, Personnel Group. 7. Employee Comment Sheets (Comment Cards), Forms 1.77, may be responded to on an Employee’s Report, Form 15.7, within 30 days of the initial review. Any employee response shall be attached to the Employee Comment Sheet (Manual Section 3/760.13). Note: If the Employee Comment Sheet is subsequently attached to a Standards Based Assessment, the employee shall have the right to contest such use via the grievance procedure. However, the Employee Comment Sheet itself will not be invalidated, destroyed or otherwise removed from the employee’s personnel package unless such treatment is specifically directed by an arbitrator through arbitration of the Standards Based Assessment. C. Issues that may be related or lead to probationary employee terminations such as, but not limited to, performance evaluations and comment card entries, or where a final and binding decision would be counter to the authority of the Chief of Police in Section 1011 of the Los Angeles City Charter shall be limited in appeal to the second level of review (Chief of Police Review) and shall not be appealed to the Police Commission or submitted to arbitration. D. Where a matter within the scope of this grievance procedure is alleged to be both a grievance and an Unfair Employee Relations Practice under the jurisdiction of the Employee Relations Board, the grievant may elect to pursue the matter either under the grievance procedure herein provided, or by action before the Employee 82 MOU24-22 Relations Board. Notwithstanding any contrary language in the Employee Relations Board's rules and regulations, the grievant's election of either procedure shall constitute a binding election of the remedy chosen and an absolute waiver of any alternative remedy. ARTICLE 8.3 RESPONSIBILITIES AND RIGHTS A. No grievant shall lose the right to process a grievance because of Management imposed limitations in scheduling meetings. B. The grievant has the responsibility to discuss the grievance informally with the grievant's immediate supervisor. The immediate supervisor will, upon request of a grievant, discuss the grievance with the employee at a mutually satisfactory time. The grievant may be represented by a representative of the grievant's choice in the informal discussion with the grievant's immediate supervisor, and at all formal review levels, and shall be permitted the opportunity to present witnesses at all formal levels of review. C. Notwithstanding Paragraph B. above, and Paragraphs A.1. and A.2. of Article 8.4, when an employee is grieving a Standard Based Assessment completed by a supervisor from a previous entity or division of assignment, the informal discussion and first level of appeal shall be completed with the immediate supervisor and commanding officer in the division or entity where the Standard Based Assessment was completed. The Employee Relations Administrator shall approve any deviation from the provisions of this Paragraph. D. The grievant and the grievant's representative, if not a League Board member, may have a reasonable amount of paid time off to present the grievance at each level of review. The grievant and the grievant's representative (unless a sworn employee currently assigned to Officer Representation Section) shall not be entitled to paid time off to investigate or prepare the grievance. A grievant may not be represented by a person who is not a member of this representation unit unless he or she has the written permission of the League. E. If a grievance representative must leave the representative's regular assignment to represent a grievant, the representative shall first obtain permission from the representative's supervisor. If permission cannot be granted promptly, the grievance representative will be informed when time can be made available. F. The time limits between steps of the grievance procedure may be extended by mutual agreement. If the last day of an appeal period falls on a weekend or City holiday, such period shall be extended to the next business day. G. Management shall notify the League of any formal grievance filed that involves the interpretation and/or application of the provisions of this MOU, and a designated member of the Board of Directors of the League shall have the right to be present 83 MOU24-22 at any formal grievance meeting concerning such a grievance. If the designated member elects to attend said grievance meeting, the member shall inform the Employee Relations Administrator of such intention. The League is to be notified of the resolution of all other formal grievances. H. The parties agree that there is a need to hold confidential information obtained during the investigation of grievances, unfair employee relations practice claims, and similar employer-employee relations matters. The procedures in Section 8.0 of this MOU and the City’s Employee Relations Ordinance provide a forum for employees to freely discuss issues of concern with Management and thus enhance morale and efficiency in the work environment. With the exception of the need for some level of disclosure in order to conduct investigations, take corrective action, and report allegations of possible misconduct, Management will hold investigations of grievances and similar employer-employee matters contained in the files of the Los Angeles Police Department as confidential privileged official records as provided for in Evidence Code Section 1040. I. Whenever a grievant has a representative, the representative shall concurrently receive all notices the grievant receives at all formal levels of review. ARTICLE 8.4 GRIEVANCE PROCEDURE A. The grievance procedure for employees covered by this MOU shall be as follows: 1. Step 1 - Informal Discussion (Immediate Supervisor Review) a. The grievant shall discuss the grievance with the grievant's immediate supervisor on an informal basis in an effort to resolve the grievance and said grievance shall be considered waived if not so presented to the immediate supervisor within 20 calendar days following the day during which the event upon which the grievance is based occurred. Said 20 calendar days may be waived by mutual consent of the parties involved. b. The immediate supervisor shall respond within 20 calendar days following meeting with the grievant. Failure of the immediate supervisor to respond within the time limit shall entitle the grievant to process the grievance at the next step. 2. Step 2 - First Level of Review (Commanding Officer Review) a. If the grievance is not settled at Step 1, the grievant may serve written notice of the grievance to the concerned Commanding Officer on a form provided by the Department within 20 calendar days of receipt of the grievance response at Step 1. Failure of the grievant 84 MOU24-22 to serve written notice shall result in the loss of the right to process the grievance. b. If written notice is served, said Commanding Officer shall meet with the grievant, and a written decision and statement of the facts and issues shall be rendered to the grievant within 20 calendar days from the date of service. Failure of Management to respond within the time limit shall entitle the grievant to process the grievance at the next level of review. 3. Step 3 - Second Level of Review (Chief of Police Review) a. If the grievance is not settled at Step 2, the grievant may serve written notice of the grievance on said form upon the Chief of Police, via the Employee Relations Administrator, within 20 calendar days following receipt of the Step 2 grievance response. Failure of the grievant to serve notice shall result in the loss of the right to process the grievance. b. If written notice is served, the Employee Relations Administrator, on behalf of the Chief of Police, shall meet with the grievant, and a written decision and statement of the facts and issues shall be rendered to the grievant within 20 calendar days from the date of service. Failure of Management to respond within the time limit shall entitle the grievant to process the grievance at the next level of review. 4. Step 4 - Third Level of Review (Police Commission Review) a. If the grievance is not settled at Step 3, the grievant may serve written notice of the grievance on said form upon the Police Commission or its designee(s), hereafter Police Commission, within 20 calendar days following receipt of the grievance response at Step 3. Failure of the grievant to serve notice shall result in the loss of the right to process the grievance. b. If written notice is served, the Police Commission shall notify the grievant in writing within 20 calendar days whether it wishes to hear the grievance. If a decision is reached to hear the grievance, the Police Commission will afford the grievant an opportunity to present oral and/or written arguments on the merits of the grievance and shall render to the grievant a written decision within 20 calendar days from the date the Police Commission notified the grievant in writing that it would hear the grievance. Failure of the Police Commission to respond in writing within the time limit shall entitle the grievant to process the grievance at the next level. 85 MOU24-22 c. If the Police Commission decides not to hear the grievance, or the League fails to timely request arbitration as provided in Step 5, the decision at Step 3, Chief of Police Review, will be the final departmental decision regarding the grievance. Step 5 – Arbitration a. If the Police Commission decides not to hear the grievance, or fails to serve written notice pursuant to Step 4 (b), or the written decision at Step 4 does not settle the grievance, the grievant and the League jointly may, within 20 calendar days of receiving a written response, or within 20 calendar days of the expiration of the 20-day period in Step 4 (b), serve upon the Police Commission a notice that a request for arbitration has been filed with the Employee Relations Board. b. The request for arbitration must be filed with the Employee Relations Board within 20 calendar days of the date the Police Commission served its response or decision on the grievant or, when no response at all is received from the Police Commission, within 20 calendar days of the expiration of the 20-day period in Step 4 (b). Failure of the League to timely request arbitration within the time herein shall result in the loss of the right to arbitrate the grievance. c. If there is a dispute as to the arbitrability of a grievance, the parties will resolve this dispute by submitting only the question of arbitrability to an arbitrator from a list of seven arbitrators furnished by the Employee Relations Board. The arbitrator shall issue a bench decision as to the arbitrability of the grievance at a one-day hearing. This bench decision must be followed up with a written decision within thirty (30) days. If the arbitrator rules that a grievance is arbitrable, the grievance will proceed with a different arbitrator in accordance with the below provisions. d. If written notice is served, or an arbitrator rules that a grievance is arbitrable under the provisions of paragraph c. above, the parties shall meet for the purpose of selecting an arbitrator from a list of seven arbitrators furnished by the Employee Relations Board, within seven calendar days following receipt of said list. (1) Arbitration of a grievance shall be limited to the formal grievance as originally filed by the grievant to the extent that said grievance has not been satisfactorily resolved. The proceedings shall be conducted in accordance with applicable rules and procedures adopted or specified by the Employee Relations Board, unless other rules or procedures for the conduct of such arbitration are specified herein. The fees and 86 MOU24-22 expenses of the arbitrator shall be shared equally by the parties involved, all other expenses including, but not limited to, fees for witnesses, transcripts, and similar costs incurred by the parties during arbitration, will be the responsibility of the individual incurring same. In any case where there is a cancellation fee, the party requesting the cancellation shall pay the fee unless the cancellation is mutually requested. In such case, the parties shall share the cancellation fee equally. (2) At an arbitration hearing, generally the League shall present its case first unless there is a mutual agreement that the Department will present its case first or the arbitrator determines there is a compelling reason for the Department to present its case first. (3) The decision of an arbitrator resulting from any arbitration of a grievance shall be binding upon the parties concerned. (4) The decision of an arbitrator resulting from any arbitration of grievances shall not add to, subtract from, or otherwise modify the terms and conditions of this MOU. (5) The burden of proof in an arbitration shall be a preponderance of the evidence. As used herein, preponderance of the evidence shall mean evidence which is of a greater weight or more convincing than the evidence offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not. In rendering an opinion and award, an arbitrator shall judge the evidence by this standard and this standard alone, regardless of the issue being arbitrated. In rendering an opinion and award, the arbitrator shall express in writing the grounds for such opinion and award so that the parties to the matter can intelligently examine and determine whether the opinion and award is supported by a preponderance of the evidence. (6) If either party to the matter believes that the arbitrator applied a burden of proof other than a preponderance of the evidence, that party may appeal the opinion and award to Superior Court under authority of the California Code of Civil Procedure, or appeal in writing to the Employee Relations Board within 30 days of issuance of the opinion and award. The party appealing the matter to the Employee Relations Board shall serve written notice of the appeal on the other party within five days. The Employee Relations Board may review the arbitrator's written opinion and award and the evidence 87 MOU24-22 presented in the case, and, if it conducts such a review, shall determine by majority vote of the members whether the award and decision is supported by a preponderance of the evidence. This ruling, or its decision not to review the matter, shall be communicated in writing to the parties to the matter within 60 days of the matter having been appealed to the Employee Relations Board. (7) If, pursuant to this Article, the Employee Relations Board sets aside the opinion and award of an arbitrator, the matter may, at the discretion of either party, be heard before a different arbitrator. (8) If the Employee Relations Board rules that the opinion and award was based on a preponderance of the evidence, if it decides not to review the award, or if it fails to act on such a request, the objecting party shall comply with the arbitrator's award. If the objecting party utilizes the Employee Relations Board in an attempt to obtain such a review, that party waives any judicial review of that award under the California Code of Civil Procedure or any other provision. ARTICLE 8.5 EMERGENCY GRIEVANCE REVIEW PROCEDURE A. When a grievant feels that a grievance is of an emergency nature, the grievant shall submit, on an appropriate form to the Chief of Police, a request for emergency consideration. The Chief of Police will determine whether an emergency exists and his decision will be final. B. If the Chief of Police determines that an emergency exists, the grievance will be reviewed at that level and a written decision or statement of facts and issues shall be rendered to the grievant within 20 calendar days from the date of service. Failure of Management to respond within such time limit shall entitle the grievant to process the grievance at the next level of review. C. If the emergency grievance is not satisfied by the Chief of Police under the Emergency Grievance Review Procedure, the grievant may serve written notice of the grievance upon the Police Commission within 20 calendar days following receipt of the grievance response. Failure of the grievant to serve notice shall result in the loss of the right to process the grievance. If notice is served, the Police Commission shall hear the grievance. The Police Commission will afford the parties an opportunity to present oral and/or written arguments on the merits of the grievance and the Police Commission shall render to the grievant a written decision within 20 calendar days from the date of service. Failure of Management to respond within the time limit shall entitle the grievant to process the grievance at the next level. 88 MOU24-22 D. If the written decision by the Police Commission does not satisfy the grievance, the grievant may serve a written notice upon the Police Commission of a timely request for arbitration as provided for in Step 5 of the Grievance Procedure. ARTICLE 8.6 PROCEDURES FOR GRIEVANCES AFFECTING A CLASS OR GROUP OF EMPLOYEES A. If the League files a grievance affecting several employees: 1. In one division or Area, the grievance shall first be processed through the division or Area commanding officer. 2. In more than one division or Area, the grievance shall first be processed through the Employee Relations Administrator. B. If the Employee Relations Administrator believes that the grievance would more appropriately be processed by a division or Area commanding officer, the Employee Relations Administrator may transfer the grievance to that commanding officer and must immediately notify the League in writing of such transfer. The transfer shall not extend the time periods for processing the grievance. C. The parties agree to mutually cooperate to ascertain the members of the class or group of employees affected by the grievance when appropriate under the circumstances. D. The grievance procedure for a grievance affecting a class or group of employees covered by this MOU shall be as follows: 1. Step 1 – Presentation of the Grievance a. The League shall serve written notice of the grievance on a form provided by the Department upon the commanding officer or Employee Relations Administrator within 20 calendar days of which discovery of the grievance should reasonably have occurred. Said 20 days may be waived by mutual consent of the parties. The grievance shall be considered waived if not filed within 20 days. b. The commanding officer or Employee Relations Administrator shall meet with the League representative in an effort to resolve the grievance and shall respond to the League with a written decision within 20 calendar days from the date of service. Said 20 days may be waived by mutual consent of the parties. Failure of Management to respond within the time limit shall entitle the League to process the grievance at the next level of review. 89 MOU24-22 c. If the grievance is accepted by the Employee Relations Administrator at Step 1, that review shall serve as the Chief of Police review for Step 2. 2. Step 2 – Chief of Police Review a. If the grievance is not settled by the commanding officer at Step 1, the League may serve written notice of the grievance on said form upon the Employee Relations Administrator, within 20 calendar days following receipt of the Step 1 grievance response. Failure of the League to serve notice shall result in the loss of the right to process the grievance. b. If written notice is served, the Employee Relations Administrator shall meet with the League representative, and a written decision and statement of the facts and issues shall be rendered to the League representative within 20 calendar days from the date of service. Time limitations imposed in Step 2 may be waived by mutual consent of the parties. Failure of Management to respond within the time limit shall entitle the League to process the grievance at the next level of review. 3. Step 3 – Police Commission Review a. If the grievance is not settled, the League may serve written notice of the grievance on said form upon the Police Commission within 20 calendar days following receipt of the grievance response. Said 20 days may be waived by mutual consent of the parties. Failure of the League to serve notice shall result in the loss of the right to process the grievance. b. If written notice is served, the Police Commission shall decide and notify the grievant in writing within 20 calendar days whether it wishes to hear the grievance. If a decision is reached to hear the grievance, the Police Commission will afford the grievant an opportunity to present oral and/or written arguments on the merits of the grievance and shall render to the grievant a written decision within 20 calendar days from the date the Police Commission notified the grievant in writing that it would hear the grievance. Failure of the Police Commission to respond within the time limits shall entitle the grievant to process the grievance at the next level. c. If the Police Commission decides not to hear the grievance, or the written decision at the Chief of Police Review does not settle the grievance, the League may request arbitration in accordance with Article 8.4, Step 5. 90 MOU24-22 ARTICLE 8.7 EXPEDITED ARBITRATION PROCEDURE By mutual agreement, the parties may submit any grievance which has reached the arbitration level to expedited arbitration. The expedited arbitration procedures are as follows: A. The selection of the arbitrator shall be conditioned upon the arbitrator's ability to submit a written ruling to the parties within 48 hours. B. An expedited arbitration shall not be officially transcribed unless it is requested by Management or the League. In the event of such a request, the party requesting the transcript shall pay the cost.