Reference no: EM132282856

On November 4, 2014, the vacant position of Sheriff Deputy-Major with a salary range of $71,172 to $108,180 was announced by the Stonewall County Personnel Department. Mrs. Jodi Davis applied for the position and was hired and began her service as a Sheriff Deputy-Major on December 30, 2014. Based on the Sheriff’s recommendation, as approved by Personnel Director, her starting salary was $90,000 annually. In early February of 2015, Deputy-Major Rudy Jas- per filed a grievance using the grievance procedure found in the collective bargaining agreement between the State Law Enforcement Officers’ Association (here- after the Union) and the County. In the grievance, he argued that he was more qualified than Mrs. Davis and therefore, his wage should be adjusted upward to $90,000 also.

Position of the Union:

The Grievant, Mr. Jasper, noted that he had been promoted to a position of Deputy Sheriff-Major on July 27, 2014, and is in the same salary range as the newly hired employee, but is currently receiving an annual salary of only $71,172, which is $18,828 less than that of newly hired employee. The Grievant made the following points:

¦ Deputy Sheriff-Major Davis is not “Jail Certified,” although the “Jail” is 70 percent of the County Sheriff’s Office and all other Deputy Sheriff-Majors are “Jail Certified.”

¦ The newly hired employee’s qualifications are not in one of the professional, technical and scientific courses of study “of a highly specialized nature” listed in the contract. For example, she does not have any training in forensics which might justify a higher salary.

¦ Sheriff Travis Jackson, Chief Deputy Billy Carter, Deputy Chief Bobby Graham, and Chief Jailer David Niemi all support Grievant receiving equal pay of $90,000.

Chief Deputy Billy Carter Mr. Jasper’s Department Head, also testified that:

¦ “Major Jasper has 21 years of experience in the Sheriff’s Office and has performed his tasks and duties expertly both as a Deputy Sheriff, and now as a Sheriff Deputy-Major.

¦ Major Jasper has worked in the Sheriff Office and Jail Bureau Administration and is currently responsible for the 24-hour operations of the jail housing and security operations. Also, under his management are the emergency response team and code red mass evacuation operations.

¦ As command staff in the Jail Bureau, at any given time, the grievant is responsible for the safety and security of over 1,500 inmates and 400+ sworn and civilian employees.”

The Union also asserted that the County did not follow a relevant provision of the contract which stated:

If a new employee is employed at a salary rate above the minimum pay rate, the affected Department Head shall review the education and work experience, and performance evaluation of “satisfactory” current employees in his/her department holding the same job title and salary range of the newly hired employee to determine if their qualifications meet and/or exceed those of the newly hired employee. The affectedDepartment Head shall recommend that the salaries of all current employees meeting and/or exceeding the qualifications of the newly hired employees be adjusted upward to equal the salary paid to the newly hired employee. This recommendation shall be made in writing and shall be implemented, if approved, by the Personnel Director.

Mr. Jasper submitted relevant “education and work experience” documents (including a letter from Billy Carter which was essentially identical to his above testimony) to Ms. Carolyn Beauregard, Personnel Director, when he filed his grievance. However, he asserted that she ignored these, only sending a copy of his written grievance back to him two weeks later stating, “Request denied.” This led him to conclude that the salary decision was capricious.

Finally, The Grievant alleged that Ms. Beauregard was negligent in not verifying what Mrs. Davis had put on her application blank. Ms. Beauregard stated in her justification for the higher salary that Mrs. Davis had been a “Police Chief” and had supervised eight (8) divisions of officers, but Mrs. Davis did not have such extensive responsibilities. Ms. Beauregard did not verify Mrs. Davis’ duties. If she had done so, she would have realized that Mrs. Davis was “Police Chief” of a County School District for four years, supervising only three (3) divisions of officers (not eight), few of which worked with hardened criminals. Clearly, Mr. Jasper was far more qualified for the position than Mrs. Davis; thus, he deserves a higher level of compensation.

Position of the Stonewall County Personnel Department:

The grievance should be denied for three reasons: First, Mrs. Davis possessed unique and exceptional qualifications, warranting a higher salary. Second, Mr. Jasper had recently been promoted and had received a pay raise as a result of the promotion; another raise would be inappropriate. Third, the contract gave Ms. Beauregard the sole authority to make a decision regarding the raise request and the arbitrator should defer to her professional judgment, based on the wording of the contract. Each of these reasons will be explored. After Mr. Jasper initially filed his grievance, Ms. Beauregard reviewed his qualifications and com- pared those to Mrs. Davis. Ms. Beauregard concluded that Mrs. Davis displayed a professional ability that warranted a salary far higher than the minimum of $71,172.00. By contrast, Mr. Jasper has not met the burden of proof that he is clearly more qualified than Mrs. Davis. Nor has he proven that her decision was in error. Consider the following facts:

¦ Mrs. Davis obtained a master’s degree in Public Administration. Both her undergraduate and graduate degrees were earned with a 4.0 GPA. Mr. Jasper only had a two-year technical college degree and a 2.96 GPA.

¦ Mrs. Davis had worked as a private security guard in retail for two years between attending college and graduate school.

¦ Mrs. Davis was director of an anti-gang program, and later as a Chief of Police in a large suburban school district in another county in the same state for four years. The fact that her department was housed in a school district does not diminish the fact that she was solely responsible for the operations of her department. The Grievant, Mr. Jasper, also has administrative responsibilities; however, he was never Chief of Police. Prior to his promotion, his only experience was as Deputy Sheriff.

¦ At the school district, Mrs. Davis supervised and worked with staff in multiple jobs and with various types of assignments and qualifications (e.g., undercover school detectives, narcotics officers, staff who use electronic surveillance, office personnel). Mr. Jasper manages more people, but almost all are in a few job categories within the classification of “Jailer.” Mrs. Davis’ job requires greater managerial skill and sensitivity.

¦ Mrs. Davis’ current job duties include supervising 72 administrative professionals in the Sheriff’s office; it also includes administrative oversight of the Forensics Laboratory, meeting weekly with the lab director. She reports directly to the Sheriff on matters that range from budgets to ongoing criminal investigations.

¦ Ms. Beauregard admits to making one minor error. When she read Mrs. Davis’ application, she mis-read the number of divisions Mrs. Davis had supervised. “The number ‘3’ looked like an ‘8’ she testified.” After the error had been brought to her attention, Ms. Beauregard submitted a corrected letter.

Second, in July 2014, at the time of his pro- motion, the salary of Mr. Jasper, a current employee, was adjusted to $71,172.00 based on Section XII, paragraph 4, (“Promotions”) which reads, in pertinent part: “When a bargaining unit employee is promoted, the salary shall be adjusted upward by 10% or to the minimum of the newposition’s pay range, whichever is greater.” Mr. Jasper’s salary was adjusted by more than 10 percent to reach the minimum of the pay grade for his new job. Further adjustment only seven months after a pro- motion is not required by the bargaining agreement; he is not entitled to two pay raises for receiving one promotion.

Salary compression (and even inversion) is the norm in law enforcement. In order to hire talent of the caliber of Mrs. Davis, it is necessary to pay a competitive salary. The Personnel Administration department has been given great latitude to negotiate salaries with new hires in order to bring quality talent into the County. Unfortunately for Mr. Jasper, pay raises from promotions are strictly governed by language in the collective bargaining agreement. Further, there is no past practice of making the type of adjustment he requests. His salary was set in accordance with the contract clause governing promotions and no further adjustment is allowed.

Third, there are procedural deficiencies to Mr. Jasper’s claim. He first filed a grievance using the County grievance procedure (not reproduced here). With that procedure, a Grievance Committee made up of fellow employees from other departments turned down his grievance. Then, he and the union filed a grievance based on the collective bargaining agreement. The relevant contract clause regarding wage adjustments pro- vides that the final decision resides with the Personnel Director. It reads that any Department Head recommendation for an employee’s pay raise “shall be implemented, if approved, by the Personnel Director.” The authority to approve also includes the authority to deny. If the Personnel Director did not have the authority to deny raise requests, then this phrase would not be in the clause and any Department Head could give raises whenever he/she wished. Pay adjustment decisions always involve professional judgment based on the evidence and Ms. Beauregard has great experience making these judgments as she has been the Personnel Director for the County for 27 years. Further, the collective bargaining agreement does not require that Ms. Beauregard give a Grievant a point- by-point analysis of the reasoning behind her conclusion. Just because she did not tell Mr. Jasper the reasons why his request was denied does not mean that the decision was capricious. As described above, the decision was a reasoned judgment, based on relevant facts and comparisons. The burden of proof is upon the Grievant to demonstrate that the decision was capricious and violated provisions of the collective bargaining agreement; the Grievant has not proven such charges. Therefore, the arbitrator should defer to managerial authority in this matter.

Questions

1. If you were Ms. Beauregard, how would you compare Mrs. Davis’ and Mr. Jasper’s qualifications? What factors would be most important to you?

2. Analyze the key arguments that each side makes. Which are most compelling? Why?

3. Management argues that the arbitrator should defer to managerial judgment. Generally, under what conditions should arbitrators defer to managerial authority and under what conditions should they not?

4. Is the job of the arbitrator to determine whether the Grievant deserves higher pay or is the arbitrator’s job simply to determine whether or not the collective bargaining agreement has been violated? Or both?

5. If you were to re-write the language of the wage- adjustment contract clause, perhaps incorporating concepts covered in this chapter (e.g., skill-based pay, job evaluation, two-tier pay plan), how would you improve the clause? Justify your revision.