OPINION AND - California Correctional Peace Officers Association

In the Matter of a Contruv@rsy
Between :
he California correctid
Peace Officers Association
and
The State of California
Department of Corrections
(Grievances of R. Duenas and
J. Ichmnel)
I
OPINION AND
Donald H. Wollett
Edmund K. Brehl, Esq.
Labor Relations Counsel
1515 South Street
North Building, Suite 400
Sacramento, A 95814-7243
Mabel Lew, Esq,
Legal Staff Counsel
C.C.P.O.A.
755 Riverpoint Drive
West Sacramento, CA 95605-1634

The hearings in this matter stretched over a year and a
half, beginning on December 6, 1993 and ending April 28,
1995.
The parties agreed that the issue is as follows:
"Did the Department of Corrections
violate Section 13.05 of the Collective
Bargaining Agreement by the actions
described in the two grievances of
Joseph Kinmel and the two grievances of
Ralph Duenas; if so, what should be the
remedy

The sole issue submitted to the Arbitrator is on the
merits. If the Arbitrator finds the grievances meritorious,
he is directed by agreement of the parties to
remand the matter to them for consideration of the
appropriate remedy. The parties also directed the
Arbitrator to retain jurisdiction to resolve remedial
questions the parties are unable to work out. (TR @ 7-8)

PERTINENT
Section 13.05(a) reads as follows:
llEmployees in Bargaining Unit VI shall
be assigned voluntary overtime by seniority
except where precluded by operational
needs of the departments or in
emergency situations. ... 11
Section 13.05(b) reads as follows:
"Each Warden/Superintendent will establish
means by which a Bargaining Unit
VI employee may sign-up for an wer-time
shift. ... It
Section 13.05(c) reads as follows:
"Due to the limited number of staff in
camps, camps shall be excluded from the
provision. Overtime at camps shall be
on a rotational basis."

Article 4.01 (a):
"Except as acpressly abridged by any
provision of the Agreement, the State
and Departments reserve and retain all
of their normal and inherent rlghts with
respect to management of their affairs
in all respects in accordance with their
responsibilities, whether exercised or
not, including but not limited to . . .
the assignment of duties and the
schedule of work time and the work
hours. . . . and otherwise to take such
measures as the employer may determine
to be necessary for the orderly,
efficient and economical operation of
the Departments of Youth Authority and
Corrections."
Article 11.17 (a):
"Re-entry standby is defined as an
assignment whereby a Parole Agent must
remain physically and geographically

able to respond when contacted by
telephone or electronic paging device to
the re-entry facility. This assignment
shall be in addition to the went's
normal work schedule. The State will
determine when and where re-entry
standby assignments, and back-up
assignments will be made."

Joseph Kim1 and Ralph Duenas are long-time enployees of
the Department of Corrections. Kimn\ells hiring date is
February 17, 1986; Duenas' hiring date is August 28,
1971. In 1987, both of the grievants volunteered and
were assigned to surveil the activities of parolee Larry
Singleton. This was the first 24-hour surveillance case
in State history shared by agents who volunteered within
Region I1 and received paid overtime.
In January of 1990, parolee Charles Rothenberg was placed
under 24-hour surveillance. This was the second non-case
load special assignment in Region 11. Kimnel and Duenas
volunteered for the assignment by making requests to
their unit supervisors and other appropriate management
personnel. Their requests were denied. Both Parole
Agents filed grievances.
Kiml' s first grievance was April 30, 1990.
It was
denied by Steve Schroeder on May 7, 1990 on two grounds:

Seniority does not apply because the operational
needs of the Department take precedence;
Management has the right to assign Agents based
'
on "perceived need. If (Union Exhibit 1 )
Kimells second grievance was on August 7, 1990.
Schroeder denied it on August 15, 1990 on the same
ground. (Union Exhibit 3 )
Duenasl first grievance was on February 16, 1990. It was
denied by Deborah Star, Field Parole Administrator, North
Bay, on the ground that the surveillance team project is
a special assignment "whose hours of work, location,
duration and staff needs preclude the following of
seniority. (Un. Ex. 2 )
Duenas' second grievance was on August 8, 1990. It was
denied by Schroeder, in essence, confirming Starrt s
decision. (Union Exhibit 4)
Operations Coordinator, Steve Schroeder, testified that
the criteria for the overtime assignment were as follows:

* The applicant is a non-smoker
* Lives within 35 miles of the watch site
* Carries a gun
* Has permanent status as a Parole Agent
* Has received the concurrence of his supervisor
The initial surveillance of Rothenberg ended on September
10, 1990 when he violated his parole and was returned to
Pelican Bay State Prison. He was released again on
parole on May 8, 1991 and was placed under surveillance
again until September 21, 1993.
In the case of Kinanel, Assistant Administrator Schroeder
took the position that flmanagement has the right to
assign agents based on perceived need. It (Union Exhibit
1)
Kim1 was also told that he was disqualified because
selection was restricted to "staff who can follow cornman&
and orders explicitly, l1 in the interest of sensitivity,
confidentiality, and flexibility. (Mion Exhibit
3

Duenas was told that "staff was selected for this special
project by management to meet operational needs.
(Union
Esrhibit 2) Duenas was also told that the selection of
agents for a special assignment is not tlbusiness as
usual. Therefore, the Department is not bound by seniority
as it would in mre routine situations. " (Union
Esrhibit 2)

UNIQN
The Union argues that the plain and unambiguous language
of Section 13.05 means that seniority governs paroles and
special assignments unless there is an emergency or assignment
by seniority is "precluded by operational needs
of the department. Theref ore, extrinsic evidence should
not be permitted to vary the plain language of Section
13.05 and create an exception to the applicability of the
seniority rule in voluntary overtime situations.
The Union's other main point is that there was no opera-
tional need to justify the Department's failure to fol-
low the seniority rule. The words, particularly the word
"preclude, mean that the seniority standard RUS~ be
followed unless there is a demonstrated operational prob-
lem which makes it impossible or inpracticable to assign
on the basis of seniority.
lThe parties stipulated that there was no emergency involved
in this case.

Finally the Union argues that both grievants were qerienced
and knowledgeable Parole Agents, fully competent
to carry-out their surveillance assignments. Reasons
given for their exclusion were pretextual; the real
reason was their activity on behalf of the Union.
EtSvlPLOYER
The general requirement of Section 13.05 that voluntary
overtime must be assigned by seniority does not apply to
the Paroles Division. It applies only to institutional
(prison) situations. That this is the correct reading is
demonstrated by Section 13.05 (b) which refers to Wardens/
Superintendents who are the administrators of institut
ions.
The sole provision of the Memorandum of Understanding
concerning Parole Agents work schedules (other than those
concerning an Agent s own case load) is Section 11.17,
dealing with re-entry standbys. They are not involved
here.

The management rights language contained in Section 4.01
clearly resenres the right of management to assign duties
and to schedule work time and work hours, including overtime,
except where wressly abridged. There is no such
express or explicit abridgement in the Memorandum of Understanding.
If the Union objected to the State1 s institution of
parole practices in response to Legislative mandates, it
should have sought negotiations as permitted by Section
19.01 of the Memorandum of Understanding. It failed to
do this.
The State asserts that the two arbitration awards
proffered by CCPQA are inapposite. The opinion and award
by Arbitrator Brand is set in the context of overtime in
an institutional setting. The award of Arbitrator Levin
concerned assignments to parole transportation. The
opinion contained no reference to the bargaining history
of Section 13.05, evidence which is critical in this
case.

History clearly demonstrates that the seniority rule did
not encompass parole operations such as the ones involved
in this case.
Finally, the Department argues that, even assuming that
Section 13.05 applies to the grievants in this case, it
cannot prevail because their level of competence and
skill is below the level required in order to meet the
Department's operational needs. The standard is one of
reasonableness, a standard which the Department met.

The first question is whether the contractual mandate
requiring selecting for overtime assignments by seniority
applies at all to non-case load, non-institutional work
by Parole Officers.
My answer, after a careful review of the evidence and of
the post-hearing briefs, is "Yes."
Ambiguity, like beauty, lies in the eyes of the beholder.
The question is whether the language at issue generates
enough doubt as to its meaning to justify the use of
extrinsic evidence to modify the words.
In the case at hand, the coverage seems clear. The rule
of seniority operates as to tuemployeeslu of the Bargaining
Unit. There is only one exclusion. It is found in paragraph
13.05 (c) which excludes "staff at camps. " This
conclusion seems ineluctable; all other employees in the
unit (other than staff at camps) are entitled, when they
volunteer for overtime, to be assigned by seniority.

In particular cases, exceptions may be made when
compelled by lloperational needs of the Department. 'Iz
The State argues that history, both at the 'bargaining
table and in practice, creates a broader exclusion - all
non- institutional employees except those in standby re -
entry. 3
The State s argument would turn the language of Section
13.05 on its head. In effect, it would mdify the lan-
guage to read as follows: llInstitutional and standby re-
entry employeesI1 shall be assigned voluntary overtime by
seniority pursuant to Sections 13.05 (a) and (b) and
Section 11.17, except for staff in camps who shall be
2Exceptions may also be made when there is an emergency. The
parties agreed that the facts in this case did not rise to that
level.
3Sometime in 1984 or 1985, the State established half-way
houses called re-entry facilities. They were located in
comnunities throughout the State for parolees to reside in. One or
two rank- and-file Parole Agent 11s on standby were on-call status
and would be assigned to each facility to respond to any incidents
which arose. Obviously the amunt of overtine available increased
as the number of these re-ent facilities increased. Parole Agent
11s were so heavily burd en3 tbat it became necessary for the
Department to select Parole Agent Is for assignment. The method of
selection varied around the State from strict seniority or sane
kind of rotation system, to a favoritism system. Predictably, many
grievances were filed.
The outcome was that the State and the Union agreed that volwntq
avertime by seniority should be applied. The elaborate system
agreed upon is set forth in Section 11.17 in Joint Exhibit 1 and in
Section 11.16 in Joint Exhibit 2.

assigned overtime pursuant to Section 13.05(c).
The remnants of historical and practiced evidence in this
record fall short of presenting a body of coherent facts
sufficient to justify such a substantial rewriting of the
contractual language, particularly language which in
terms I do not find ambiguous.
My job is to interpret the language, not to rewrite it.
The State points to the reference in Section 13.05(b) to
ft~ardens/Superintendents. It It directs them to devise a
sign-up procedure for voluntary overtime creating rosters
from which assignments shall be made. Apparently the
State's argument is that the specification of institu-
tional procedures means that non-institutional overtime
is excluded. If this is the meaning, why does the following
section ( 13 . 05 (c).) exclude only "staff in camps "
If the exclusion was intended to be broader than that,
why didn't the parties say so
The elaborate procedure for assigning overtime for re-
entry standby personnel prescribed by Section 11.17 does
not help the State either. The fact that a prescription

is set forth for one situation does not support the in-
ference that other situations are excluded.
The State might have argued, although it did not, that
the tern I1operational needsu refers to institutional set -
tings where there are spatial and temporal constraints,
a fixed roster of employees, and a complex of diverse
tasks requiring different, discrete skills. I am not
persuaded, although I agree that the concept of
operational needs is easier to apply to an institutional
setting than to a non-institutional one.
The State makes much of the Union's failure to initiate
negotiations to deal with overtime situations - the 24-
hour surveillance assignments - not contemplated by the
parties. (Employer Brief C 15) Section 19.01 (b) calls
for negotiations during the term of the Memrandum of
Understanding when the State makes changes which affect
the working conditions of a significant number of
employees in the bargaining unit.
This would have been a sensible thing to do at the time
the Singleton matter arose. But the State also had an

obligation under 19.01(b) - viz., to give notice of the
changes. The Union's obligation is to respond to the
notice by requesting negotiations. 4
The State's failure was primary. It is poor form for it
to fault the Union. Both parties were wrong here. But
there is no reason why the grievants should suffer.
*There is a provision for binding arbitration if the parties
disagree as to whether the matter is subject to negotiations under
sSection 19.01 (b) .

To me, an operational need refers to factors that affect
the ability of the managers of an operation to carry out
their responsibilities - for examples, there aren t
enough competent people available to pennit assignment by
seniority, senior personnel are located too far away for
effective deployment, senior personnel lack the proper
skills, and they lack experience and training, etc.
Management should be able to demonstrate, if demanded,
that these facts foreclose (make it inpracticable, if not
impossible) to assign overtime on the basis of seniority.
Management was unable to make these showings in the cases
at hand. In the first place, the responsible managers
appear to have fixed what might be described as an elite
cadre based on subjective judgments as to competence,
reliability, integrity, etc. (TR @ 87) Steve Schroeder,
Field Parole Administrator, testified that he put
together a roster of agents based on his knowledge of
their ability to react in an emergency situation, their

eligibility under the 35 mile rule, their ability to use
arms, the fact that they were not on probation, and the
fact that they were in good stead with their supervisors
- viz., they were on top of their work load. (TR @ 79-
80)
The grievants, Kim1 and Duenas, requested that they be
added to this list. The request was refused, although
they appeared to meet most, if not all, of the criteria.
In my view, the contractual language at issue does not
permit this procedure. What management should do is to
solicit volunteers and to offer the work to the senior
volunteers in order, reserving the right to exclude
particular senior volunteers on the ground that they are
not competent, reliable, etc. This procedure would have
placed on management the burden of justifying deviations
from the seniority rule. The actual procedure followed
in these cases placed the burden on the grievants to
establish why their seniority should carry the day. The
contractual language does not permit this.

In the second place, there was nothing about these surveillance
assignments which called for unique skills or
reliability beyond that which is the usual part of the
job of a Parole Agent. The notoriety of the cases did
not equate to operational difficulties, although it
created public relations and political concerns.
. Roenicke, Deputy Regional Administrator at the time
of the Rothenberg assignments, and the supemisor of
Steve Schroeder, added some criteria for selection - the
employee not be the subject of a current adverse action
or internal affairs investigation, be a non-smoker, have
the ability to use independent judgment in diverse
situations, and to respond to emergency situations. (TR
@ 385)
Perhaps most meaningfully, his testimny was that the
criteria applied in Rothenberg were an evolution of the
experiences that the Department had had in the Singleton
case. (TR 8 285)
In my judgment, the record supports
the finding that the skills required for the surveillance
tasks in the Rothenberg case were the same skills that
Journeymen Parole Agents have acquired and must perfect
'It is important to remember here that the griewmts had been
assigned to the Singleton case.

in order to function properly as Parole Agents, and that
the grievants had acquired them earlier. (TR @ 654, 662-
664)
Indeed, there is substantial evidence that the
surveillance work, while obviously it carried heavy
responsibilities, was routinely not very demanding. For
example, the testimony of Jim Haagenson, a Parole Agent
11, and Assistant Unit Supervisor of the Vallejo Unit,
showed that he "pulled a lot of these surveillance shifts
sitting there with Charlie. ... In Februaxy, the first
full month he had been out, I made $6,000 of overtime.
. . . For whatever reason... [management] completely
abandoned the seniority system. [was] like a kid in a
candy store . . . This is the easiest money I've ever
seen. I sat there and watched t .v. and video tapes for
$45 an hour, and so mostly what I did was baby-sit.
. . .
[The job] didn't require a whole lot of training or skill
or anything.
It just took its toll because Charlie
[Rothenberg] is an irritating person. (TR @ 753, 754)
Ronald Chun, Regional Parole Administrator at the time of
the Rothenberg case, testified that the 35 mile rule was

not uniformly observed because it was not practicable to
do so. (TR @ 291-292) In fact, he testified that the
exception of operaticmal needs overwhelmed or swallowed
the seniority rule. (TR @ 306) At least, Chun made it
clear that he didn't instruct Schroeder to put seniority
first. In fact, he said, Ifit was the apposite; we tried
to get people who could do the job." (TR @ 306-307)
To sum~lrize my findings drawn from this record, management
did not look to seniority first, as the language
required it to do, management selected a cadre of Parole
Agents by applying highly subjective criteria. To hold
that this decisional process is permissible would mean as
a practical matter that the rule of seniority was lost,
viz., rendered meaningless. 6
During the arbitration hearing several management witnesses
made efforts to justify the rejection of the
grievantsf requests: they were argumentative, Kimnel
dawdled on the phone, they did not write good reports,
Duenas had a problem with a dog, or perhaps 2 dogs,
Kimnel violated a rule when he was assigned as a
6The 35 mile rule would qualify as an objective criterion.
The difficulty is that it was not strictly enforced throughout the
entire Rothenberg parole period. (TR @ 92) There m s testi~ary
that it was only a guideline, not a rule. (TR Q 40)

surveillance agent in the Singleton matter, and there
were other complaints of a similar genre, e . g . , Duenas
was not a " team player. l1 But there was nothing that rose
to the level of a reprimand or other form of discipline.
I have two comnents to make about these &
efforts to justify the exclusion of the grievants from
the overtime assignments despite the fact that they were
experienced and were, so far as the record discloses,
perfectly competent Parole Agents who have been doing
their job satisfactorily for a long time.
First, these comnents fall in the category, in my
judgment, of felicitous afterthoughts. Second, and more
important, I find no nexus between this relatively
picayune fault -finding and the term %perational needs of
the Department. l1
Management certainly has the right to manage. Article
4.01 underscores this truism. But it must manage in
accordance within the constraints of the Memorandum of
Agreement.

For the reasons set forth above, I have concluded that
the Department of Corrections violated Section 13.05 of
the Collective Bargaining Agreement by the actions described
in the two grievances of Joseph Kimnel and the two
grievances of Ralph Duenas.
In
view, the liability of the Department is clear.
The matter is remnded to the parties for consideration
of the question of remedy. If the parties are unable to
resolve their differences about this matter and to reach
agreement by February 1, 1996, the Arbitrator will convene,
in response to an appropriate request from either
party, an evidentiary hearing to deal with this issue.
November 30, 1995
Date