Zachery A. Lopes
Attorney at Law
Rains Lucia Stern St. Phalle & Silver
West Valley-Mission College Police Officers’ Association
The West Valley-Mission Community College District Police Officers’ Association (“WVMPOA”) is pleased to report back-to-back labor victories against the West Valley-Mission Community College District (“District”).
The first involved contractual arbitration contesting the District’s violation of mandatory overtime compensation provisions the District had selectively ignored for the WVMPOA president by denying him owed overtime compensation. The second, a successful unfair labor practice charge before the Public Employee Relations Board (“PERB”) (WVMPOA v. West Valley Mission Community College Dist. (2017) PERB Dec. No. HO-U-1550), held the District accountable for unlawfully retaliating against the president as a result of his protected union activity.
The contractual arbitration contested the District’s denial of mandatory overtime compensation for the WVMPOA president, after he was assigned by the District’s Police Department to work two full shifts back-to-back with only a few hour break between each assignment. The Memorandum of Understanding (“MOU”) between the WVMPOA and the District required the District to pay the WVMPOA president for a full work shift because he was assigned to two shifts with such a short rest period. The provision, not uncommon in public safety labor agreements, is intended to deter the employer from assigning its employees work shifts without sufficient time off for rest, which is crucial for both officer and public safety.
The MOU provision requiring this overtime compensation had been included within the WVMPOA’s MOU for at least three decades without amendment. The problem, however, was that the provision’s language was not clear on exactly how much overtime a qualifying member was entitled to receive – either overtime for the full subsequent work shift, or overtime for only the hours worked within the specified rest period window. Nonetheless, the District had properly paid dozens of WVMPOA members overtime for the full subsequent work shift for at least twenty years, yet decided not to do so for the WVMPOA’s President.
This is likely because the WVMPOA president had gained a reputation within the District as an active advocate for his members, including, but not limited to, prosecuting multiple grievances, filing Public Records Act requests to elicit relevant information for collective bargaining purposes, representing his members during numerous meet-and-confer meetings, fact-finding hearings, and leading contentious, but ultimately successful MOU negotiations. This active advocacy for his members apparently caused the District, without explanation, to reinterpret the MOU and deny the WVMPOA president overtime pay for his full subsequent shift. Despite several good faith efforts to resolve the matter harmoniously with the District, the WVMPOA was forced to initiate a formal grievance and advance to arbitration.
At the arbitration hearing, WVMPOA’s counsel presented testimony from numerous WVMPOA members and introduced evidence demonstrating the District’s consistent compliance with the provision for dozens of years. The lone witness to deny this consistent application of the provision was a Department administrative supervisor, who quickly contradicted his sworn testimony on cross-examination by admitting to being properly compensated by this exact provision at least two times himself. Clearly, the District had subjected the WVMPOA president to a special interpretation of the MOU. The arbitrator found for the WVMPOA, and held that the District had improperly compensated the WVMPOA president in violation of the MOU. Notably, the arbitrator completely discounted the testimony of the Department’s star witness, finding that the WVMPOA’s witnesses were much more credible.
The unfair labor practice charge before PERB directly accused the District of retaliating against the WVMPOA president in violation of the Educational Employment Relations Act (“EERA”). The WVMPOA president suffered an injury preventing him from performing his regular peace officer duties, causing him to request modified duty assignments on multiple occasions from the Department. For the WVMPOA president’s first two requests, his supervisor – the same supervisor who advocated for the WVMPOA president receiving improper compensation during the arbitration – immediately denied that the Department had any such assignments available without making any further inquiries and ignoring the WVMPOA president’s list of suggestions for available assignments. These immediate refusals forced the WVMPOA president to deplete accumulated paid time off.
On the WVMPOA president’s third request, he was informed that the District was obligated to engage in an “interactive process” requiring a series of meetings to determine what assignments were available to accommodate his injury. What followed was months of unnecessary medical requests, cancelled meetings, and feigned inquiries into the available work. Several months after the process had begun, the Department admitted it had available work – the exact assignments suggested by the WVMPOA president months prior when he made his initial request for modified duty.
At the hearing before PERB, WVMPOA’s counsel elicited from District witnesses (sworn and non-sworn) that two other Department employees had been provided modified duty assignments during the time that the WVMPOA president was denied his requests, consisting of work substantially similar to what he had suggested. Moreover, neither of those employees were required to go through the administrative obstacles for assignment of that work, nor were they required to provide daily logs of their completed assignments as the WVMPOA president was required to do. WVMPOA’s counsel also highlighted the District’s admonishment to the WVMPOA president that he stop doing any work on behalf of the WVMPOA in his capacity as the elected President while he was on unpaid leave, and the mysterious fact that years of documents went missing from the WVMPOA president’s personnel file. In the end, it was apparent to PERB that the District was simply attempting to seize an opportunity to remove the WVMPOA president from his union duties and retaliate against him for prior activities on behalf of the WVMPOA. Indeed, PERB stated in its written decision that the District’s and the Department’s (the Lieutenant and the Investigator’s) “denials [of available modified duty work] were given so precociously, it is difficult to credit them with any degree of accuracy or integrity.” PERB ordered the District to reinstate the WVMPOA president’s used paid time off and cease and desist from further retaliatory activity.
The underlying theme for the District’s conduct in both cases was a concerted effort to retaliate against WVMPOA leadership, and specifically the WVMPOA president, for his and the WVMPOA’s past efforts to advance its members’ working conditions.
Zachery A. Lopes of Rains Lucia Stern St. Phalle & Silver, PC handled both cases for the WVMPOA. The WVMPOA president extends his deepest gratitude to the law firm and Mr. Lopes for their commitment, loyalty, expertise and compassion.