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SOCIETY OF PROFESSIONAL SCIENTISTS AND ENGINEERS AFFILITAED WITH CALIFORNIA STATE EMPLOYEES
ASSOCIATION LAWRENCE LIVERMORE LABORATORY |
Newsletter #2, 1978 [April]
CSEA and SPSE Win in Court
R. White
MAJOR RIGHTS VICTORY FOR LLL EMPLOYEES
It has long been the position of UC and LLL that employees serve at the pleasure of the Laboratory and that consequently an employee may be dismissed for cause without previously being given a statement of charges or evidence supporting the charges or a fair pre-dismissal hearing of his/her reply. SPSE and CSEA have, on the other hand, argued that LLL is obligated, by law, to accord employees full due process rights prior to dismissal. The issue here is not whether LLL may dismiss an employee for poor performance or misconduct; rather it is whether an allegation of poor performance or misconduct, without a statement of charges and evidence, is grounds for a dismissal which can only be challenged after the fact via established grievance procedures.
This question has previously been settled for State employees through the California State Supreme Court's decision in the case of Skelly vs. the State Personnel Board. In "Skelly," the court ruled that the employee (Skelly) had a property interest in continued employment and hence could not be deprived of his job without the observance of due process. LLL and UC have argued that "Skelly" does not apply to their employees, (just as they argue that many of the laws passed by our Legislature do not apply to the University and LLL).
Not so, according to a decision published by the California State Court of Appeals on March 2. In Mendoza vs. the Regents of UC, the appellate court has ruled that since Ms. Mendoza (an employee of the UC San Francisco Medical Center) was not accorded due process prior to dismissal, she is entitled to full back pay for the period from 6/30/75, when she was dismissed, through 2/12/76, when President Saxon made a final decision on her grievance appeal.
The Court showed little tolerance for the University's arguments; in the Mendoza decision, the Court commented: "(The University's) contentions are predicated on an obvious misconception of law." This is precisely what SPSE's Job Stewards have been telling LLL for some time.
The Mendoza decision will have important consequences for LLL employees. First, the question re due process rights has now been settled. This will surely have ramifications for at least one long-standing LLL grievance which is now awaiting a decision by the grievance hearing committee. Arguments by the UC Counsel, that "Skelly" does not apply to LLL, figured prominently in the testimony of this grievance. We are withholding comment re this grievance until the hearing committee has published its decision.
A second way in which "Mendoza" will affect LLL employees is that LLL has been put on notice that the courts can and will interpret LLL employment policies. This should affect the quality of response to formal appeals filed on behalf of LLL employees. For example, we have experienced difficulties in appeals of salary actions in that the decisions of department heads and the Director have failed to address the issues raised. Due process requires that conflicts in evidence be resolved. It is not clear whether Mendoza will motivate LLL to be more careful in responding to appeals but if they are not, it is likely we will take at least one such appeal to court.
Ms. Mendoza was represented by CSEA. Since the case was of vital interest to LLL employees, the Scientists and Engineers Legal Defense Fund filed a friend of the court brief supporting Ms. Mendoza. The arguments presented in this brief played an important role in the Court's Decision
| SPSE's Executive Board meets at noon, each Wednesday, Bldg. 113, Rm. 1207. Member participation is welcome. |
"In Good Faith"
Cal André, President CSEA Chapter 130
In 1976, Congressman Pete Stark responded to requests from SPSE and to numerous complaints from individual LLL employees, by introducing an amendment to the ERDA appropriations act. This amendment was intended to give collective bargaining rights to LLL employees.
This legislation, drafted in consultation with CSEA, was modified after LLL and the University agreed not to oppose the amendment provided they were allowed to participate in a rewording. They did participate in rewording the amendment, but nevertheless, proceeded to oppose the amendment and even to criticize the wording which they had helped to develop. In spite of this opposition, Stark's amendment was passed overwhelmingly by the House and was reported out of the House-Senate conference committee intact. It failed to become law only because Congress failed to pass the entire appropriations act.
Early in 1977, the new Congress took up the appropriations act including the Stark amendment. Senator Hayakawa, who had been actively courted by the LLL management, had the amendment stricken from the act. CSEA and the AFL induced Senator Cranston to reintroduce the amendment. Despite considerable lobbying by LLL management, the Senate passed the amendment and Stark reintroduced it in the House. The University and LLL sensed that the legislation would become law and proposed a compromise.
The compromise was that the University would guarantee employee rights similar to those which would have been secured via collective bargaining legislation. Specifically, the University committed to 1) Mediation of disputes, 2) Binding arbitration of employee grievances and 3) "To meet (with employee organizations).. . and confer In good faith, to freely exchange appropriate information, opinions, and proposals, and to endeavor to reach agreement on issues of mutual concern." These guarantees were formalized via a memorandum from UC Vice-president Archie Kleingartner. In exchange for the guarantees, Senator Cranston and Representative Stark agreed to withdraw their amendment.
Just one day after the Kleingartner memo was distributed, we had the first indications that LLL did not intend to comply. On September 20, 1977, Deputy Director Duane Sewell (who had participated in the negotiations in Washington) issued an administrative memo which reproduced most of Kleingartner's memorandum and commented: "In a real sense (these agreements) mean no major modifications to the employee relations practices at LLL."
Though we were suspicious, SPSE, at first, accepted UC's explanation that Sewell's statement was simply an attempt to assure LLL employees that there would be no immediate and upsetting changes in the employees' relation to LLL. However, subsequent events have verified our initial suspicions.
With respect to the commitment to binding arbitration, the University has proposed to limit binding arbitration to dismissals, corrective action, and layoffs. The UC proposal excludes such matters as salary actions, job classifications, discrimination, harassment by supervisors, unfair employment evaluations, health and safety and other violations of UC policy and ethical employment practices. CSEA has protested and has submitted a counter proposal which would bring under binding arbitration most matters grievable under the existing UC/LLL grievance and appeals procedures. However, it appears that the University will ignore their obligation to reach agreement with CSEA and will unilaterally adopt the severely restricted arbitration policy. Recent communications indicate it is likely that CSEA will sue.
We have also had problems on the local level. Though LLL has engaged in meet and confer sessions with SPSE, they have steadfastly refused to exchange information (see e.g. SPSE Newsletter #10, 19977) and have avoided clarifying the mechanism by which they will endeavor to reach agreements. This matter came to a head when, on February 15, representatives of SPSE's salary committee met with LLL's Labor Relations Division to present proposals relating to raises for next October. We were distraught that no representatives of LLL's Professional Salary Committee (PSC) were present. However, we indicated that transmission of verbatim transcripts of our proposals to the PSC would suffice for this first 1978 interaction on salaries. But, when we inquired how the PSC would interact and endeavor to reach agreements with us (as is required by the Kleingartner memo), Labor Relations refused to reply. The SPSE delegation reluctantly terminated the meeting.
Subsequently, we asked for a meet and confer to clarify the mechanism by which LLL would endeavor to reach agreements with SPSE. This meeting was held on February 21. LLL Labor Relations Manager Mike Lynn was candid: "The Laboratory has no intention of endeavoring to reach agreements with SPSE." When we asked that this statement be reflected in the written record, Lynn slightly modified it to "(LLL) has no mechanism for endeavoring to reach agreements (with SPSE)." SPSE protested this violation of the Kleingartner guarantees and asked that Mr. Lynn inform Associate Director James Carothers that the LLL stance leaves SPSE with three recourses: the courts, legislation and the pressure of publicity.
We believe that the LLL position is both cynical and ill advised. It is certainly not calculated to win the respect and confidence of those members of Congress who accepted, in good faith, the UC/LLL compromise on the Stark amendment. Surely the LLL actions will give pause to Congress when they consider other matters relating to our Laboratory.
R. White
CSEA PUTS $$$ IN YOUR PAYCHECK
In last month's Newsletter, I discussed the CSEA/SPSE budget. One item in CSEA's statewide budget, Legislative Action, will receive $294,000 in 1978. A few days after I turned the copy for the budget article over to our Editor, a local paper carried an editorial which complained that organizations of state employees, particularly C SEA, had spent considerable funds for "lobbying." This local editor felt it was somehow improper that public employees would contribute a portion of their salaries to influence legislation.
I understand this editor's concern. Recent events have sensitized all of us taxpayers to the improper use of influence in both Congress and the State Legislature. However, the key word here is "improper." CSEA's legislative action program is not only proper, it is a necessary part of the democratic process.
As public employees, our salaries are, ultimately, determined by legislative action. First, funds for operation of LLL are appropriated by Congress. Second, though the funding for LLL does not come directly from the State, our salary levels and, particularly, our benefits, are strongly coupled to the salaries and benefits paid to State and University employees. It has been the practice that LLL employees receive the same benefits as other University employees and that University benefits parallel the benefits paid to State employees. The salaries and benefits of State employees are set by the Legislature.
Legislation does not occur spontaneously. It requires that someone or some group sees the need, drafts the legislation, finds legislative sponsors, testifies before numerous legislative committees and interacts with both the governor and individual legislators to answer objections and seek compromises. CSEA stands almost alone in performing these functions for State, CSUC, University and LLL employees.
The principle contributions to CSEA's legislative action program to your paycheck has come via their efforts to improve benefits. At the present time, LLL reckons that approximately 1/3 of your total compensation is in benefits including vacation, holidays, sick leave, retirement, health insurance and life insurance. Though your benefits do not compare favorable with those enjoyed by scientists and engineers employed by private industry, they are considerably better than they would be without CSEA to support you in the legislature.
SPSE was formed in 1973. Since then there have been at least seven benefits increases which have come to you directly from the CSEA legislative action program. In each case, the enacting legislation was drafted by CSEA, CSEA located the legislative sponsors and testified before many committees. In some cases CSEA went to court to mandate that the University (and LLL) comply with legislation once it was passed. (This has been necessary because the University has often invoked their charter, under the State Constitution, to claim independence of legislative actions.) The following items have directly increased your take home pay:
1974--Increase of maximum LLL contribution to health insurance from $16/mo. to $19, $33, $41/mo. (employee, employee + one dependent, employee + two or more dependents).
1975--Increase of maximum LLL contribution to health insurance from $19, $33, $41/mo. to $22, $37, $47/mo.
1976--Increase of maximum LLL contribution to health insurance to $29, $49, $60/mo.
1977--Increase of maximum LLL contribution to health insurance to $32, $53, $66.
1974--1% decrease in employee contributions to retirement system (2% for those in PERS who were covered by Social Security); compensating increase in LLL contributions.
1975--$9 monthly decrease in employee contributions to retirement, compensating increase in LLL contributions.
1976--$10 monthly decrease in employee contributions to retirement, compensating increase in LLL contributions.
Let us examine the cash value of these benefits to a "typical" LLL professional. Consider a PhD with 10 years since Bachelor's degree who is paid $2270 monthly (the 50 percentile level, for a PhD with 10 years since BS degree, according to LLL published data). We assume that this "typical" professional has maximum health insurance coverage for his family and hence is receiving $66 per month Lab paid health coverage, an increase of $50 monthly over the $16 monthly in effect in 1973. The following table summarizes the net increase in his take home pay due to CSEA authored/ sponsored legislation:
Health Insurance: $50/mo. x 12 mo.
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$600.00/yr. $110040/yr. |
This should be compared with the relatively modest SPSE/CSEA dues: $3.50 + 0.40k of salary monthly which for our "typical" professional amounts to $150.96 per year and is tax deductible.
In addition to the above mentioned benefits, you are provided with $5000 Lab paid life insurance which also came via the CSEA legislative action program. Furthermore, the recent change in holiday vacation leave policy, which grants compensating holidays to LLL employees when a regular holiday falls on a Saturday, is the result of negotiations between CSEA, Governor Brown and UC President Saxon. Other benefits changes which have come via CSEA are improved disability protection and survivor benefits in addition to the $5000 life insurance mentioned above.
It is true that you receive all the above benefits whether or not you belong to SPSE/CSEA. It is also true that you would not be receiving them if CSEA did not represent your interests. Further, it is very probably that CSEA would not bother with securing benefits for LLL employees if we did not have a strong CSEA Chapter at LLL. (We are the largest chapter in the University System and SPSE makes up more than 50% of the chapter membership.) In a very real sense, the SPSE/CSEA members at LLL are paying for legislative action which benefits all LLL employees. SPSE supports you and we critically need your support. If you are not already a member, join us.
I WOULD LIKE TO JOIN SPSE Name ________________________________________________________ Bldg. ___________ Room ____________ L- ___________ Ext. __________ Mail to: |
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