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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE RONALD S. RILEY, ) ) ) Plaintiff, ) v. ) ) THE DELAWARE RIVER AND BAY ) AUTHORITY, JAMES JOHNSON, ) Individually, JAMES WALLS, Individually, ) TRUDY SPENCE-PARKER, Individually, ) and CONSUELLA PETTY-JUDKINS, ) Individually. ) ) Defendants. )
C.A. No. 05-746 (MPT) (Consolidated)
APPENDIX TO DEFENDANTS' OPENING BRIEF IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT
William W. Bowser, Esquire (Bar I.D. 2239) Adria B. Martinelli, Esquire (Bar I.D. 4056) YOUNG CONAWAY STARGATT & TAYLOR, LLP The Brandywine Building, 17th Floor 1000 West Street, P.O. Box 391 Wilmington, Delaware 19899-0391 Telephone: (302) 571-6601, 6623 Facsimile: (302) 576-3282, 3314 [email protected]; [email protected] Attorneys for Defendants DATED: May 15, 2008
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Table of Contents Documents DRBA Personnel Manual .........................................................................................................A1 Tomanelli Memo to Murphy dated February 3, 2003...............................................................A4 Authorization for Change in Classification ..............................................................................A7 Riley E-mail to Spence-Parker dated March 19, 2003 .............................................................A8 Riley E-mail to Spence-Parker dated March 21, 2003 .............................................................A9 Spence-Parker E-mail to Murphy dated March 24, 2003 .......................................................A10 Riley E-mail to Spence-Parker dated March 31, 2003 ...........................................................A11 DRBA Position Description Questionnaire for Operations Clerk .........................................A12 DRBA Personnel Payroll Action Form...................................................................................A16 Murphy Letter to Riley dated April 28, 2003 .........................................................................A17 Riley Memo to Shahan dated June 5, 2003.............................................................................A18 Riley Memo to Johnson dated June 15, 2003 .........................................................................A19 Johnson Memo to Riley dated July 7, 2003............................................................................A22 Murray-Sheppard Letter to Bowser and Josem dated September 24, 2004............................A25 Collective Bargaining Agreement By and Between DRBA and Local 542 ...........................A28 Riley Charge of Discrimination dated May 24, 2005 .............................................................A82 DDOL Final determination and Right to Sue Notice dated July 29, 2005 .............................A84 Riley Application for Employment with DRBA ....................................................................A85 Spence-Parker Letter to Riley dated May 26, 2006................................................................A89 Riley Letter to Spence-Parker dated June 1, 2006..................................................................A90 Local 542 Grievance on Behalf of Riley dated June 14, 2006 ...............................................A91 Riley Charge of Discrimination dated September 19, 2006 ...................................................A92
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DDOL Final Determination and Right to Sue Notice dated October 23, 2006.........................................................................................................................................A94 Riley Memo to Coles dated March 2007 ................................................................................A96 DRBA Employee Service for Ronald Riley ...........................................................................A97 Local 542 Grievance on Behalf of Riley dated March 11, 2008 ............................................A98 Coles Memo to Riley dated March 20, 2008 ........................................................................A104 Transcripts Excerpts from the Deposition Transcript of Ronald S. Riley dated December 6, 2007 .................................................................................................................A107 Excerpts from the Deposition Transcript of Ronald S. Riley dated February 11, 2008 .................................................................................................................A146 Excerpts from the Deposition Transcript of Alexander E. Coles dated February 27, 2008 .................................................................................................................A155 Excerpts from the Deposition Transcript of Stephen D. Williams dated February 27, 2008 .................................................................................................................A169 Miscellaneous Declaration of James H. Walls dated May 15, 2008 (with Exhibit A) .................................A171 Declaration of Stephen D. Williams dated May 15, 2008 ....................................................A177
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THE DELAWARE RIVER AND BAY AUTHORITY
PERSONNEL MANUAL
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XIX.
GRIEVANCE PROCEDURE
A grievance is any complaint arising between an employee and the Authority with reference to a condition of employment other than conditions set forth in Section XVIII. Any employee, believing he has a just complaint or grievance, may present and make known the same to the Authority and seek redress therefore in the following manner. An employee may not be represented by any DRBA supervisor or any member of DRBA management.
STEP 1. A complaint should be made in writing to the employee's Department Head who shall render a written decision within three working days after receipt of the complaint.
STEP 2. If the complaint is not satisfactorily settled by the employee's Department Head, the employee may, within two working days after the Department Head's written decision, request, in writing, to be heard by the senior manager of the employee's area of employment. For employees working at the Delaware Memorial Bridge, the senior manager is the Director of Bridge Operations. For administrative personnel, the senior manager is the Chief
Operating Officer. For employees at the Cape May-Lewes Ferry, the senior manager is the Director of Ferry Operations. For Authority Police, the senior manager is the Police Administrator. For employees assigned to the Airports Division, the senior manager is the Director of Airport Operations. The senior manager shall investigate the matter within ten working days after receipt of request, and shall hold a meeting with the employee, the department head, and the division head to resolve the complaint.
STEP 3. If the complaint is not satisfactorily settled by the meeting with the senior manager, the employee may, within three working days after the decision of the senior manager, take the matter, in writing, to the Executive Director of the Authority or his designee. The Executive Director or his
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designee, within ten working days after receipt, shall hold a group meeting with the employee's senior manager, the employee and himself.
The Executive Director or his designee will present a written report addressing the nature of the grievance and the results of the conference with the employee and senior management. The Executive Director's (or designee's) decision in the matter will be final.
The Executive Director or his designee may, if he desires, appoint a committee ofstaffmembers to investigate any phase of a complaint. The results of any such investigation shall be made in writing to the Executive Director or his designee and shall be made part of the record of the case. The record of the case, including all investigative reports, shall remain confidential and shall be made available only to the employee and the members of the Authority appointed to review the complaint.
Any employee who takes his/her employment problems outside of the Authority without first attempting to resolve said problems in accordance with the above procedure, shall be subject to disciplinary action. However, nothing in this section shall be deemed to abrogate any legal means of redress to the courts or appropriate State or Federal agencies, or prohibit consultation with a designated representative.
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THE DELAWARE RIVER AND BAY AUTHORITY Post Office Box 71
DELAWARE MEMORIAL. BRIDGE AIRPORTS New Castle, DE 19720 CAPE MAY-LEWES FERRY THREE FORTS FERRY OPERATION
DIvISION
302.571.6474 Fax: 302.571.6367
AIR.PoRTs ADMINISTRATION
February 3, 2003 To: From: Linda Murphy DRBA Human Resources Director Director of Airport Operations Request for NC Airport Safety Position Re-Classification in the case of AMT Ronald Riley
Subject:
1. The DRBA Airports Division has reviewed the job specifications associated with NC Airport Safety (15250), Authorized Position No . 525, Airport Maintenance Technician (AMT). The review has determined that NC Airport Safety does not require an AMT.
2. Airports Division requests that NC Airport Safety (15250), Authorized Position No. 525, Airport Maintenance Technician (AMT) be considered for re-classification to New Castle Airport Operations Clerk in accordance with the attached job description.
3. I also recommend that the incumbent, AMT Ronald Riley, be retained in the position of New Castle Airport Operations clerk. Mr. Riley has occupied this position since the Fall of 2001. He has been instrumental in the development of the Airport Operations Clerk position description and has carried out the duties of acting NCA Airport Operations Clerk in a professional and satisfactory manner since assuming the job.
occo Tomanelli
f
Director of Airport Operations Delaware River & Bay Authority Copy (with attachment) R. Riley F. Shahan
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.01-430 i.ir,r +`aN3d .^11J;''si.+1 t{ :321Vkl^l.da
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DELAWARE RIVER AND BAY AUTHORITY NEW CASTLE AIRPORT LOCATION POSITION TITLE: REPORTS TO: OPERATIONS CLERK ASSISTANT AIRPORT OPERATIONS MANAGER (New Castle)
1.
NATURE OF WORK
This position is the initial DRBA point of contact for individuals seeking assistance from New Castle Airport Operations. Primary responsibilities of this position include greeting and assisting DRBA employees, airfield tenants, visitors, and users at the Airport Operations Office, and performing a variety of administrative duties. Duties include answering telephones, managing ID badge system, issuing and revoking tenant airfield ID badges, and providing clerical help to the Airport Operations staff. Employee may be called upon to perform additional duties as assigned. Shift hours will vary according to operational needs.
II.
EXAMPLES OF WORK
· · · Greets and assists visitors, airfield users and DRBA employees in a courteous and professional manner. Promptly notifies Operations staff of visitors. Answers and promptly routes all incoming calls and messages to the appropriate department in a professional and courteous manner (FAA, POLICE, AIRPORT ADMIN, etc.) Prepares correspondence on behalf of the Operations staff. Maintains accurate, complete and up-to-date files of all correspondence pertaining to airfield users and tenants including maintaining a mercantile list.
· ·
· · ·
· · ·
Manage the ID badge system for the Airports Division tenants. Provide assistance to Operations Specialist. Coordinates with Operations Specialists to issue and cancel Notices to Airmen (NOTAMS).
Maintains log of visitors and contractors working at the New Castle Airport site. Communicate with DRBA employees using two-way radio. Other related duties as may be assigned.
III.
REQUIRED KNOWLEDGE, SHILLS, AND ABILITIES
· · · Knowledge of standard office practices and procedures. Knowledge of grammar and English composition. Ability to communicate clearly and effectively , in a courteous manner, both orally and in writing.
· ·
·
Ability to deal with the public in a professional manner. Ability to handle a large number of telephone calls and radio communications in polite, courteous and professional manner.
Ability to operate office equipment to include personal computers (proficient in word processing , spreadsheet and e -mail applications), facsimile, photocopiers and DRBA ID badge system.
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IV.
MINIMUM QUALIFICATIONS
· Must be a graduate from a standard high school, vocational school or possess a state high school equivalency certificate (GED).
· ·
Must be a least 18 years old. Experienced in use of personal computers to include word processing, spreadsheet and e-mail applications.
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TH' ")ELAWARE RIVER & BAY AUTH Y"°TY AUTHOK,/-ATION FOR CHANCE IN CLASSI# .,,ATiON
Ronald S. Riley
Document 58
313 N. Clayton Street Wilmington, ICE 19305
Effective March 1, 2003, yo'Ur classification is changed to Airport Operations Cleric.
Filed 05/15/2008
Location: Airports
Original - Employee
Duplicate - Human Resources
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Riley, Ronald S.
From:
Sent: To, Subject:
Riley, Ronald S.
Wednesday, March 19, 2003 8:02 AM Spence-Parker,Trudy RE:
I want to say thank you for your quick response and I recieved the letter on 3/18/03, when I got home. Once agalp THANKS, Ron
-Original Message---Spence-Parker,Trudy From: Tuesday, March 18, 2003 4:32 PM Sent: To: Riley, Ronald S.
Subject: RE:
Ron, Thank you for the welcome. Let me see where your confirmation papers are. 1 will follow up soon. If you have not heard from me by Monday, March 24, do not hesitate to call me on 302-571-6397. Trudy Spence-Parker Chief H :.,:an Resource Officer Delaware River and Bay Authority ----Original Message ---From : Riley, Ronald S. Sent: Monday, March 17, 2003 3:30 PM To. Spence-Parker,Trudy Subject: My name is Ron Riley, and I wolud like to welcome you to the D.R.B.A.. 1 am the acting Operations Clerk at the NCA. My position was finalized by Mr. Johnson over two weeks ago, but when I spoke with Linda Murphy, has yet to give me the final confirmation papers saying she has not looked at my papeer work. I have been doing this job since September 14,2002 and would like some closure to this process. Once Again Welcome, Ron Riley
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Riley, Ronald S.
From:
Sent: To: Subject:
Riley, Ronald S.
Friday, March 21, 2003 8:29 AM Spence-Parker,Trudy Move up a paygrade,no more money?
Hello, once again, this is Ron Riley over at NCA, as I said before, on March 1,2003, 1 received my job description, which I had been doing since Feb,28,2002. I moved up one paygrade, but 1 did not get a.pay increase. Through the process I have over and over again proved why I deserve a raise in pay. I have a highly visible position in the Airport division. I have provided my superiors with letters of appreciation from different tenants here at the airportand I have a full evaluation. When get a chance 1 would Love to sit down and explain why I should receive more pay. once Again, Thanks for a kind eye and hopefully a king ear Ron S. Riley (operations Clerk)
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Murphy, Linda
From : Sent: To: Subject : Spence-Parker,Trudy Monday, March 24, 2003 5:00 PM Murphy, Linda FW: Move up a paygrade,no more money?
Linda, Give me your thoughts. Trudy
-----Original Message----From: Riley, Ronald S.
Sent: Friday, March 21, 2003 8:29 AM To: Spence-Parker,Trudy
Subject: Move up a paygrade,no more money?
Hello, once again, this is Ron Riley over at NCA. as I said before, on March 1,2003, 1 received my job description, which I had been doing since Feb.28,2002. I moved up one paygrade, but I did not get a pay increase. Through the process I have over and over again proved why I deserve a raise in pay. I have a highly visible position in the Airport division. I have provided my superiors with letters of appreciation from different tenants here at the airportand I have a full evaluation. When get a chance I would Love to sit down and explain why I should receive more pay. Once Again, Thanks for a kind eye and hopefully a king ear Ron S. Riley (Operations Clerk)
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Riley, Ronald S.
From: Sent: To: Subject: Riley, Ronald S. Monday, March 31, 2003 3:44 PM Spence-Parker,Trudy RE: Fallow Up
I hope you understand that I have been doing this job since Feb. 2002. Now the question is whether I desire a raise in pay? I don't understand. I thought, if someone was doing a job over a long period of time and finally got the position, that the person should receive some kind of pay raise and retro active pay! Doing a job for so long and not being compensated is not right. And just think, this has been in the works for over a year, but i still did my job without a job description. Maybe you sholud setup a date when l can show you the paperwork I have and then you will understand my point of view alot better.
----Original Message
From: Sent: To: Spence-Parker,Trudy Monday, March 31, 200310:31 AM Riley, Ronald S.
Cc: Subject:
Murphy, unda Follow Up
Ron, I have taken your situation under advisement. I am going to have your current job classification reviewed for an accurate understanding and comparison within the Hay Report. After our due diligence is complete, I will get back to you regarding results and any actions that would be required. In general, if a pay adjustment is determined as a result of our due diligence, you will be notified and the adjustment will be made retro active to March 1, 2003, (date of title change to Operation Clerk). Ron, if there are any other questions, don't hesitate to ask me. Trudy Spence-Parker
Chief Human Resoureces Officer Delaware River and Bay Authority 302-571-6397
t.spence-parkeOD-drba.net
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Delaware River. & Bay Authority
POSITION DESCRIPTION QUES'T'IONNAIRE FOR HOURLY POSITIONS
Your Name: lease Print
Title:
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Why does your job exist?
Write a one-sentenec statement describing the purpose of your job and the way your job contributes to achieving your department's objectives.
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List the essential duties which make up your regular activities. (ex. File all correspondence and forms daily for manager.)
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List the Duties in order of importance. The total of all % time should equal 100%.
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Knowledge & Skill: List the experience, education , knowledge and skills preferred for effective functioning in this job.
Required Education, Training and Experience Describe special technical , academic or other knowkdge ^ preferred to th:s job. Describe how much and what type of additional work experience is referred as a minimum for this job. t
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i Comments:
,
Please state any additional comments which may be helpful in understanding this joh and how it functions within the organization as a whole.
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Supervisor's Comments: -%\
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What do you consider the most important qualifications of an employee in this job?
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Please confirm that you read the questionnaire, and it is an accurate description of the position performed at a fully competent level.
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DELAWARE RIVEK & BAY AUTHORITY PERSONNEL PA TROLL ACTION .FORM
PLEASE CHECK APPROPRIATE ACTION Transfer Penn FIT u u
r r 4
ya
Probation u
Demotion Perm P/T
u u
Lateral Move Casual
u u
Disciplinary Action Seasonal
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Employee Name: Employee Address:
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City:
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OLD
State
r Zip: ^
Social Security #:
CHANGE Position Title 'L5^5 5Z $ Annual Salary Hourly Rate Status Division Location Org Code Date Requested:
Home Telephone #:
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Date Effective:
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JUSTIFICATION FOR ACTION Comments:
APPROVED
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es
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Chief Op e^atiIns
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* Upon approval notice of Personnel Payroll Acton v)fl be sent todke/employee from Human Resources.
H(rVl3 nns/Payroll Action Form, April, 2003 ^^ r, ./? x- r , -.
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THE DELAWARE RIVER AND BAY AUTHORITY Post Office Box 71
DELAWARE MEMORIAL BRIDGE AIRPORTS DIVISION New Castle, DE 19720 302 . 571.6436 Fax: 302.571.6420 CAPE MAY- LEWES FERRY THREE FORTS FERRY OPERATION
DEPARTMENT OF HUMAN RESOURCES
April 28, 2003
To:
Ronald Riley
Operations Clerk - Airports
Firnm·
T.inrln N M
Subject:
Position Evaluation / Job Title Change
An evaluation of the position of Operations Clerk-Airports was recently completed by the Hay Group . This evaluation included a review of the job description and a review of the Position Description Questionnaire (PDQ) completed by you and your supervisor. The results of the position evaluation and grade recommendation have been received. Based upon all of the documentation and information provided, Grade P has been determined to be the appropriate grade for the position of Operations Clerk - Airports. Your salary will be adjusted to reflect the movement to Grade P effective March 1, 2003. The authorization reflecting this change is enclosed. Please contact me if you have any questions.
cc:
R. Tomanelli
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THE DELAWARE Rrvm AND BAY .A.umomTy
Post OfficeBox 71
DP AwAREMEmowALBRmcE AwomsDwooN New Castle, DE 14720 302.571.6474 Fax: 302.571.6367 CAPE MAY-LEWEs FERRY THREE FORTS FERRY OPERArioN
AiRPoP,rs Ai)mngrs rltA-noN
MEMO
Date:June 5, 2003
To: Ron Riley From: Frank Sr ` Subj: Response to your Step # I Grievance Received This Afternoon concerning Pay Grade Adjustment and Retroactive Pay
While I appreciate your performance in your role as Airport Operations Clerk, I cannot render a decision on your request other then to remind you of your right to continue your grievance process. Accordingly, your grievance is denied at Step # I.
c.c. Rocco Tomanelli, Airports Director
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TO:
Jim Johnson Executive Director Ronald S. Riley Operations Clerk June 15, 2003 Step ##3 Grievance (Pay Grade Adjustment / R.etropay Operations Clerk)
FROM:
DATE: REFERENCE:
The attached letter is to serve as step 43 of grievance procedure concerning the Pay Grade Adjustment / Retropay for my current position of Operations Clerk.
42
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FACTS: This process started in the fall of 2001 , when I was assigned to the Airports Division after a on the job truck accident. During this time the "911" tragedy happened and the Operations Department had to make security changes within the department . One of the main changes was the installation and management of the computerized I.D. badging system. With this system I have to put every individual having access to the air operations area in the I.D. badging system for accountability . During a department meeting, I asked if I could do the badging alone, because information was not being put in the computer correctly. No one in the room objected, so I took the task of being the individual with the responsibility of inputting the data into the computer, along with the filing and updating of files. During this time management concurred that badging and monitoring of people on the airfield was critical and I was to be solely responsible. In January 02', I was asked to develop a job description of the work I do. I worked diligently on creating a job description with no help from supervision . This was a task that management should have performed and performed in a timely manner (2-3 months at the most). I utilized my leadership skills and diligence, by taking the initiative to complete the job description . As you will see throughout this note, I made numerous contacts with various personnel in management positions regarding this matter. I continuously get the run around or my calls or emails are not answered. Several months passed before I discussed my job description with Jeff Lewis. He reviewed it over and recommended that I review it with Rocco. I took my job description to Rocco in August '02. Rocco told me to talk with Joe Clemente, who at that time was the Assistant Airport Operations Manager. On August 7, 2002, Joe Clemente, told me that Human. Resources had the job description. Then on. August 8, 2002, Joe Clemente told me, I would have my job description approved by August 16, 2002- That date came and went with no closure insight. Three months went by and I still did my job in a professional manner. On December 4, 2002, Rocco TomaneR Airport Director told me Linda Murphy had the job description. On December 9, 2002, I spoke with Linda Murphy and she said, she received the job description from Rocco, but has not looked it over, yet! I called Linda Murphy back on Dec. 19, 2002 at 2pm, I was told she was not in the office at that time . So, I called Jim Johnson' s secretary Micki to see if I could speak with the Tim Johnson, Executive Director of the D.R.B.A. Micki put me on hold and after a few minutes, she said, "J"un said work it out between Rocco and yourself '! Then on January 8, 2003, Rocco said he was going to see Linda Murphy again regarding my job description. On January 10, 2003, I was told by Rocco that he would see Linda again regarding the job description. January 16, 2003, Rocco informed me that he wanted to sit down and talk about my duties at the Airport. All this time has passed I still do not have a job description , but I continue to do my job in a professional .manner. On February 26,2003, Rocco informs me Linda is sending over a copy of the job description (FINALIZED)! 1 March 13 ,2003, I met with the new Chief of Human. Resources, Trudy Parker-Spence about the outcome and retroactive pay. I have e-mailed her on numerous occasions (May 27t`, May 28'' and May 29*) with no response . While this process has gone on for over a year, I have done my job and beyond. Due to no fault of my own, I feel as if I'm being penalized because of managements' lack of effort to do their job, which was to follow this process through in a timely manner! I have far more responsibility than before and I only received a 5% raise and two months retroactive pay! ! As a maintenance tech, I had little or nn responsibilities, but as an Operation Clerk, I'm the liaison between the corporations, tenants and visitors . My responsibilities have greatly changed and it does not reflect in my pay. To RECTIFY: The creation of my job is the result of the variety of work I have performed for more than a year, not from a study, estimation or opinion - actual, work done for the entire period of my
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assignment. I feel I am entitled to retro pay back to Febrctaiy `02, since I performed the job duties that are listed in the finalized job description from that period. I do not feel that the 5% raise is fair compensation for the job that I do and responsibilities that I have. Therefore, I am requesting that a member of Human Resources share the Hay Study results and the job comparisons to me, as I'm not completely satisfied with the outcome.
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THE DELAWARE RIPER AND BAY AUTHC?RITY Past Office Box 71
DEI.Awmm MEMomn BRmm A poRTS DmsioN New Castle, DE 19720 302.571 .6301 Fax: 302.571.6305
OFFICE of THE EXEcu-rrvE DIREGToR
CAPE MAY - LEWES FERRY THREE FORTS FERRY OPE"noN
MBMORAMUM
TO:
Mr. Ronald S. Riley Operations Clerk //James T. Minson, Executive Director July 7, 2003
FROM:
DATE:
SUBJECT: Step 3 Grievance Decision
BACKGROUND On June 30, 2003, we held a Step 3 conference to discuss the aspects of your grievance. The following persons were in attendance at this conference: Mr. Ron Riley, Ms. Trudy Spence-Parker, Mr. Rocco Tomanelli, Mr. Jim Walls, and myself. Documentation surrounding the grievance included multiple pieces of correspondence: an undated 2 page document that was prepared by you for the Step 1 grievance proceedings, Mr. Frank Shahan's June 5, 2003 memorandum that stated denial of the Step 1 grievance, a June 9, 2003 memorandum to you from Mr. Rocco Tomanelli that initiated Step 2, Mr. Tomanelli's memorandum dated June 16, 2003 that stated denial of the Step 2 grievance, a June 16, 2003 memorandum from yourself to me that requested a Step 3 grievance proceeding, and my June 19, 2003 memorandum to you initiating the Step 3 proceeding.
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July 7, 2003
Page Two
At our Step 3 conference you provided me with the background of your Delaware River & Bay Authority career and the various issues surrounding your grievance. in summary, your grievance focuses on: · The 5% pay adjustment that you received as an Operation Clerk, pay grade P, does not represent fair compensation for the job and responsibilities you perform. Additionally, the retroactive pay that accompanied this adjustment should have been from February 2002, instead of March 1, 2003.
·
UNDERSTANDING The following is a chronology of factual events that have been considered: 0 On September 4, 2001 you returned to work from a Long Term Disability status as a result of the injury on April 7, 1999 . Your return to work required that you be restricted to light duty and that your hours of work be reduced to 20 hours per week. As a result of these restrictions you were no longer able to function in the position of Airport Maintenance Technician. A temporary light duty job was created for you to accommodate your restrictions. A job description and job title of Temporary Airports Operations Assistant (TAOA) was established. On March 14, 2002 you continued to be restricted to light duty however, you returned to a full time employment schedule , working 40 hours per week. You remained in the position of Temporary Airports Operations Assistant (TAOA). The temporary light duty position required you to perform a variety of administrative duties including , but not limited to, answering phones, preparing tenant work orders, and assisting the public and users of the airfield. A formalized request was made to 'the Director of Human Resources on December 4, 2002 to re-classify the temporary light duty position (TAOA) to a permanent light duty assignment. The request for a permanent assignment was processed. The process involved employee , supervisor, manager and Hay consultant participation . This process was completed on April 18, 2003. The permanent assignment was established with a job description and job title of This position requires you to perform a variety of Operations Clerk. administrative duties including , but not limited to, answering phones, managing an ID badge system, and providing clerical support for the Airport Operations staff (attached). This description incorporates your input from responses to the Hay questionnaire in April 2003.
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·
The Operations Clerk is a position that has been evaluated by the Hay consultants and established as a pay grade of P. Page Three July 7, 2003
·
Once the permanent position was formalized, you were given a pay increase of 5%. This increase was made retroactive to March 1, 2003.
DECISION While I understand the points you raised in our meeting concerning your grievance, I am not recommending a modification to the 5% adjustment that you received. Based on the information I have reviewed, you are properly compensated for the responsibilities and duties detailed in your job description. At no time were you inappropriately paid for work performed either in the temporary capacity or in the permanent capacity. The following are the results for your work status with the Authority: · You were compensated at an annual rate of $25,150.00 upon your return to a full time employment status on March 14, 2002, while working in the temporary assignment. This represents a compensation rate of 87% of the mid-point of the range for pay grade P. You received an annual increase in pay in January 2003. Your anziual compensation rate was $26,030.00. This. represents a compensation rate of 90% of the mid-point of the range for pay grade P. Once the permanent position was formalized you received a pay increase of 5% changing your annual compensation to $27,331.00. This represents a compensation rate of 94.7% of the avid-point of the range for pay grade P.
·
·
Additionally, the retroactive pay adjustment that you received was properly applied. The Authority has no formal process to complete a request for re-classification within specific time periods. A request to re-classify a job title and position, once accepted by Human Resources can take weeks and months to complete depending on the requirements of the business. cc: Trudy Spence-Parker, Chief Human Resources Officer Jim Walls, Chief Operations Officer Rocco Tomanell, Director of Airports File
Attachment
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Deborah L. Murray-Sheppard
Arbitrator
408 Nichols Avenue Wilmington, DE 19803 (302) 478.2445 dm urraysheppard(a)_comcast.net 4'h Floor, Carvel Bldg. 820 N. French St. Wilmington, DE 19801 (302) 577.5072 Fax: (302) 577.3297
24 September 2004 (via e-mail and US Mail) William T. Josem, Esq. Cleary & Josem, LLP [email protected]
1420 Walnut Street, Suite 300 Philadelphia, PA 19102 William W. Bowser, Esq.
Young, Conaway, Stargatt & Taylor P.O. Box 391 Wilmington, DE 19899-0391 [email protected]
Re:
Representation Election Delaware River Bay Authority & IUOE Local 542
Dear Mr. Josem and Mx. Bowser: Enclosed please find an official copy of the Tally of Ballots from the September 23, 2004, certification election. A majority of the ballots were cast in favor of representation by International Union of Operating Engineers, AFL-CIO, Local 542. Consequently, the bargaining unit of Delaware River and Bay Authority employees described in the Stipulated Bargaining Unit Definition is now represented for purposes of collective bargaining by the IOUE. I have also enclosed with Mr. Bowser's copy of this letter copies of the Notice of Election Results which must be posted by the DRBA in all places where notices affecting the bargaining unit employees are normally posted. These Notices should remain posted for a period of fifteen (15) days. Upon posting of these notices, I am requesting the Certificate of Posting which accompanies the employer's copy of this letter be completed and returned to me. Section 15 of you Election Agreement defines the procedures to be followed for filing and resolving any objections to the conduct of the election or conduct affecting the results of the election. Any objections must be filed within five (5) days after receipt of the results of the voting. Consequently, any objections should be filed in writing to me on or before Wednesday, September 29, 2004.
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William T. Josem, Esq. William W. Bowser, Esq. 24 September 2004
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Page Two
I will hand deliver copies of this letter and multiple copies of the Notice of Election Results to Mr. Bowser's office this morning in order to allow the DRBA the opportunity to have these Notices posted as soon as possible. Please do not hesitate to contact me if you have any questions or concerns regarding this process.
Sincerely,
"'0 ^-5
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Deborah L. Murray-Sheppard Arbitrator
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Deborah L. Murray-Sheppard
Arbitrator
408 Nichols Avenue Wilmington , DE 19803 (302) 478.2445 sheppard4080-comcast.net
0 Floor, Carvel Bldg. 820 N. French St. Wilmington, DE 19801
(302) 577.5072 Fax: (302) 577.3297
CERTIFICATE OF POSTING
RE:
DRSA and 1U0E Local 542
This is to advise you that, per your request, copies of the Notice of Election Results in the above reference matter were posted at every place of employment of affected employees and in the office of the employer on (date).
EMPLOYER REPRESENTATIVE
DATE
Please return the completedform on or before Monday, September 27, 2004.. This form may be filed by facsimile transmission to 302.577.3297
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COLLECTIVE BARGAINING AGREEMENT BY AND BETWEEN DRBA and Local 542
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COLLECTIVE BARGAINING AGREEMENT BY AND BETWEEN DELAWARE RIVER AND BAY AUTHORITY AND INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 542
[DATE]
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ARTICLE 1 PREAMBLE 1.1 This contract (hereinafter referred to as the "Agreement") is entered into this _ , 200_, by and between the Delaware River and day of Bay Authority, hereinafter referred to as the "DRBA," "Employer," or
"Authority," and International Union of Operating Engineers, Local 542, hereinafter referred to as the "Union." It is the purpose of this Agreement to promote and maintain a harmonious relationship between the Authority and its employees covered by this Agreement, to establish an orderly and peaceful procedure in the settlement of differences which might arise, and to provide for joint collective bargaining in the determination of wages, hours, and other conditions of employment of employees covered by this Agreement.
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ARTICLE 2 RECOGNITION
2.1 The DRBA hereby agrees to recognize the Union as the sole and exclusive representative for the purpose of collective bargaining with respect to wages, hours, and conditions of employment for those employees of the Authority in the following appropriate unit: All permanent full-time and permanent part-time DRBA maintenance employees, airport employees, toll collectors, and food service employees, but excluding managers, supervisors, clerical employees, police department employees, ferry operations employees, retail employees, and casual and seasonal employees. The positions included in the unit are attached as Exhibit A. All other DRBA employees are excluded. 2.2 Unless otherwise indicated, the terms employee and employees when used in this Agreement refer to all persons represented by the Union in the above-defined bargaining unit. The use of any male pronoun is intended to be equally applicable to male and female employees covered by this Agreement. 2.3 The Authority agrees that when hiring employees, after exercising its discretion whether to give first consideration to seasonal, casual, or temporary employees, it will give the Union copies of any bargaining unit vacancies that are posted. The Union may refer candidates for application for positions that are posted, but the Authority reserves the right to make all hiring decisions. Upon hiring an employee into a position represented by the bargaining unit, the Authority shall advise the Union in writing of the individual's name, address, date of hire, and position to which the individual is being hired.
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ARTICLE 3 MANAGEMENT RIGHTS
3.1 Except as modified or restricted by a provision or provisions of this Agreement, all managerial prerogatives and functions are retained and vested exclusively in the Authority in accordance with its judgment and discretion to: manage and direct the work of employees; to demote, reprimand, suspend, discharge, or otherwise discipline employees, except as restricted by this Agreement; to hire, promote, and determine qualifications of employees; to assign and direct their work; to transfer, layoff, and recall to work employees; to set standards of productivity and the services to be rendered; to add or subtract shifts, as needed; to maintain the efficiency of operations; to determine the personnel, methods, and means by which such operations are conducted; to determine the number and types of employees required; to assign such work to employees in accordance with the needs of the Authority as determined by the Authority; to determine employee job duties; to set the starting and quitting time and the hours and shifts to be worked; to subcontract or contract out work covered by this Agreement; to control and regulate the use of facilities, equipment and other property of the Authority; to introduce new or improved equipment and operational methods; to issue, amend, or revise policies, rules, regulations, procedures, and practices necessary to carry out these and all other managerial prerogatives; and to take whatever action that is otherwise necessary in the Authority's judgment and discretion to administer the business and direct the Authority's employees. The Authority's failure to exercise any prerogative or function in a particular way shall not be considered a waiver of the Authority's right to exercise such prerogative or function to preclude it from exercising the same in some other way, not in conflict with the provisions of this Agreement.
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ARTICLE 4 UNION SECURITY
4.1 The DR13A hereby agrees to deduct from the wages of employees who so authorize by means of a check-off the dues, fees, and assessments uniformly required by the Union. The Authority, after receipt of a written authorization from each individual employee, agrees to deduct from the employee's gross wages (including overtime and paid annual leave) the amount of dues set forth by the Union. Such deductions shall be made each pay period paid to each employee. In making the deductions as above specified, the Authority shall rely upon the mostrecent communication from the Union as to the amount of dues. The total amount deducted shall be transmitted to the Union within ten (10) calendar days after the end of each calendar month. The Authority agrees to forward the full name and address for all new employees who become eligible for membership. The Authority further agrees to notify the Union in the event dues for an employee cannot be deducted from the designated salary and the reason therefore. 4.2 The Authority agrees that subject to any applicable law the Union shall be entitled to a representation fee from any employee who elects not to join or resigns from the Union. Such fee shall be in lieu of regular dues paid to the Union by its members for collective bargaining and contract administration services rendered by the Union on behalf of all employees covered by this Agreement. The above representation fee which shall be paid by payroll deduction as hereafter set forth shall be in an amount equivalent to that part of the Union's regular dues which does not represent expenses for benefits inuring only to its members or political and ideological activities, but in no event shall such representation fee exceed eighty-five percent (85%) of the Union's regular membership dues. As a condition of the above deduction of any representation fee, the Authority shall be provided by the Union an annual statement from its independent auditors setting forth information sufficient to confirm the amount of its regular membership dues which benefits only its members and the cost of any expenditures by the Union for political or ideological activities. The Authority shall deduct dues as soon as possible after the tenth day following reentry into this unit for employees who previously served in a position identified as excluded or confidential, for individuals re-employed in this unit from a reemployment list, for employees returned from leave without pay.
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4.4
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4.6
The Union hereby agrees that it will indemnify and hold the Authority harmless from any claims, actions, or proceedings brought by the employee'in the bargaining unit that arise from deductions made by the Authority in accordance with this provision. The Union may demand the suspension of any employee who fails to pay dues or representation fees as required by this Article. The demand shall be in writing and dated and signed by the proper Union officials and shall set forth the exact amount due to the Union. The Authority shall suspend such employee on the eighth (8 h) day after the demand is tendered until the employee pays the Union the amount due.
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ARTICLE 5 UNION PRIVILEGES
5.1 The Union will have the right to visit Authority facilities at reasonable hours for Union business. The Union shall be required to give prior notice to the Chief Operations Officer or his designee should it desire to meet with employees during working time. The Chief Operations Officer or his designee shall not unreasonably deny such permission. The Union agrees that any visitation permitted shall not interfere with normal conduct of work within a department and shall not abuse this right of visitation. Copies of all rules, regulations, and communications affecting wages, hours and other terms and conditions of employment for employees covered by this Agreement shall be furnished to the Union within twenty-four (24) hours of their promulgation or as soon as possible except as specifically provided elsewhere. The Union may appoint up to seven (7) stewards. The names of the stewards shall be submitted to the Authority after the execution of this Agreement and the Authority shall be advised in writing of any changes along with the names of all successors and replacements within seven (7) calendar days. The duties of the stewards shall include acceptance of Union membership applications, Dues check-off cards, attendance at investigatory meetings and grievance meetings, and the investigation and processing of grievances through the grievance procedure. Stewards shall be afforded necessary time during working hours when needed to attend investigatory meetings of the Authority or to attend any grievance meeting in accordance with the steps of the grievance procedure.
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ARTICLE 6 LEAVE FOR UNION ACTIVITY
6.1 Time off with pay will be granted upon written request to the Chief Operations Officer provided sufficient notice is given to provide relief to not more than one (1) employee at any time for the purpose of attending no more than one (1) Union convention per year. The amount of time off shall be limited to five (5) days or forty (40) hours for such purposes. A second employee. may attend without pay. Time off without pay will be granted upon written request to the Chief Operations Officer to not more than one (1) employee taking a temporary or full-time position with the Union, for a period not to exceed one (1) year. The employee's seniority shall accumulate and upon completion of his leave, the employee shall be returned to his former position at the rate in effect at the time of his return and without loss or prejudice to any of his rights.
6.2
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7
ARTICLE 7 GRIEVANCE AND ARBITRATION PROCEDURE
7.1 A grievance shall be a claim either by the Employer, an employee, or by the Union that either the Employer, an individual employee, group of employees, or the Union has been harmed by either the interpretation or application of the terms and conditions of this Agreement and other conditions of employment. A grievance to be considered under this procedure must be initiated in writing within fifteen (15) calendar days from the time when the cause for grievance occurred or when the grievant or the Union should have reasonably known of its occurrence, and the procedure following shall be resorted to as the sole means of obtaining adjustment of the grievance. Failure at any step of this procedure to communicate the decision on a grievance within the specified time limits shall permit the grievant to proceed to the next step. Failure at any step of this procedure to appeal a grievance to the next step within the specified time limits shall be deemed to be a waiver of further appeal of the decision. The grievance, when it first arises, shall be taken up in writing between the employee, the Shop Steward, and the appropriate director, superintendent, administrator, or his designee. The appropriate director, superintendent, administrator, or his designee shall within five (5) working days thereafter give an oral or written decision on the grievance. If no satisfactory settlement is reached during the first informal conference, then such grievance shall be served by the Shop Steward upon the Chief Operations Officer or his designee. Within five (5) working days thereafter, the grievance shall be discussed between the Chief Operations Officer or his designee and a representative of the Union. A written decision shall be given to the Union within five (5) working days thereafter. 7.5 If the decision given by the Chief Operations Officer to the Union does not satisfactorily resolve the grievance, the Union shall notify the Executive Director, or his designee, within five (5) working days, of its desire to meet. The Executive Director or designee shall meet with a representative of the Union within five (5) working days after receipt of the notice by the Union, unless a longer time frame for the meeting is mutually agreed upon between the parties. A written decision shall be given to the Union within fifteen (15) calendar days thereafter. In the event the grievance is not satisfactorily settled by the meeting between the Executive Director or his designee and the representative of the Union, then within thirty (30) calendar days the Union shall inform the DRBA in writing that the matter is proceeding to arbitration . Not later than ten ( 10) calendar days after the Union informs the DRBA, the DRBA and the Union shall jointly request the American Arbitration Association ("AAA") to furnish to the DRBA and the
7.2
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Union a list of seven (7) qualified and impartial arbitrators. Within five (5) days after receipt of that list by the DRBA and the Union, the DRBA and the Union shall alternatively strike the names from the list until only one (1) name remains. The arbitrator whose name remains shall hear the grievance under the rules and regulations of the AAA. The arbitrator shall have the full power to hear and determine the dispute and the arbitrator's decision shall be final and binding. 7.7 The arbitrator shall have no authority to change, modify, alter, substitute, add to, or subtract from the provisions of this Agreement. Attendance at arbitration hearings shall be limited to parties that have a direct interest in the outcome of said hearing, such as witnesses and major representatives of each party. The fee of the AAA and the fees and expenses of the arbitrator shall be borne by the Authority if the arbitrator sustains the grievance in full. The fee of the AAA and the fees and expenses of the arbitrator shall be borne by the Union if the arbitrator fails to sustain the grievance in full. Other than the fees and expenses of the AAA and the arbitrator, each party shall bear its own arbitration expenses.
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ARTICLE 8 NON-DISCRIMINATION
8.1 Neither the Employer nor the Union shall discriminate against any employee on account of union membership, race, religion, disability, national origin, age, sex, political affiliation , or any status protected by applicable law.
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ARTICLE 9 PROBATIONARY EMPLOYEE Ra
9.1 Employees upon becoming a member of the bargaining unit shall be considered probationary for a period of one hundred twenty (120) days worked from the first day of employment as a member of the bargaining unit covered by this Agreement. During the probationary period, the affected employee may be terminated from employment at any time for any reason, without recourse to the grievance and arbitration procedure of this Agreement. The Authority may conduct a written performance evaluation of the probationary employee during the probationary period. Employees receiving promotion to a position within the bargaining unit shall be subject to a probationary period in the promoted position of one hundred twenty (120) days worked. During said probationary period, the employee may voluntarily or at the option of the Authority be returned to his prior position. A decision to return the employee to his prior position by the Authority during the probationary period may be for any reason and will not be subject to challenge or recourse under the grievance procedure. Article 9.1 shall not apply to employees who have successfully completed their probationary period prior to the effective date of this Agreement.
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ARTICLE 10 HOURS OF WORK, PENALTY, OVERTIME, AND PREMIUM PAY
10.1 The standard workweek of each employee shall consist of forty (40) hours per week and generally consist of four (4) or five (5) days in a seven- (7) day period. The workweek shall commence at 12:01 a.m. Sunday and conclude 12:00 Midnight Saturday. Provided that the foregoing is adhered to, the workweek may be altered by the Authority to meet specific operational needs. This provision shall not be construed as a guarantee of forty (40) hours' of work. For permanent full-time food service employees, the normal workday shall consist of seven (7) to eleven (11) hours, in half- (1/2) hour increments that are continuous. For permanent full-time employees other than food service employees, the normal workday shall consist of eight (8); ten (10), or to ' twelve (12) hours. For permanent part-time employees, the normal workday shall consist of four (4) to twelve (12) hours, in half- (1/2) hour increments that are continuous. Employees shall be paid one and one-half (1.5) times the hourly rate for all hours worked in excess of forty (40) hours in a week. In weeks in which a paid holiday occurs, should an employee in a day work in excess of eight (8) hours, and in excess of his regularly scheduled shift, whichever is greater, and provided the employee has worked all straight time hours made available to him during the workweek, then the employee shall receive overtime at one and one-half (1.5) times the employee's regular hourly rate of pay for all time worked in excess of eight (8) hours or in excess of his regularly scheduled shift, whichever is greater, provided further that the employee's hours worked plus any holiday hours paid but not worked exceed forty (40) hours for the week. An employee who has left the workplace after the end of the regularly scheduled work, period but is called back to work shall be paid a minimum of three (3) hours. If the length of time worked after being called back is more than three (3) hours, the employee will be paid for all hours worked during the additional period of work. The Authority will implement a compensatory time policy no later than April 1, 2006. The Authority shall give the Union fourteen (14) calendar days notice of the implementation of this policy. During the fourteen (14) day period, the Union may request the opportunity to meet and discuss the policy with the Authority. Upon completion of the period to meet and discuss the proposed change, the Authority may implement the policy with or without the Union's agreement. Should the Union contend that the policy violates a term and condition of this agreement, the Union shall have the right to adjudicate its position through the grievance procedure set forth in this agreement. An employee assigned to act as a temporary supervisor for an entire shift shall receive a one dollar per hour ($1.00/hour) over their wage rate for that shift.
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10.7
a
10.8 I 10.9
The Authority retains the right to change the shift starting times provided that the Authority gives the Union and the affected employees at least 48 hours' notice before such a change commences in non-emergency situations. Overtime for bargaining-unit employees in Tolls shall be assigned by working through the seniority list described in Article 11.5. In the event that all employees refuse to accept an overtime assignment, the Authority shall have the right to direct the least-senior employee to work the overtime assignment. Employees shall be compensated for mandatory meetings scheduled outside of their normal shift. The time in attendance at such meetings shall count as time worked for purposes of calculating any overtime pay due the employee. The number and duration of break and meal times continue as heretofore. The Authority retains the right to schedule all breaks and meal times. Effective January 1, 2006, and continuing for the term of this agreement, employees assigned to departments which operate 24 hours a day and seven days a week, shall be eligible for shift differential pay. Full-time employees that are permanently assigned to a fixed shift or fixed rotating shift where the majority of hours worked on such shift occur between the hours of 4:00 p.m. and 6:00 a.m. shall receive a shift differential of twenty-five cents ($0.25) per hour for all hours actually worked in that workday, except that the shift differential shall not be paid when the employee is receiving overtime or any other prernium pay.
10.10
10.11
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ARTICLE 11 SENIORITY
11.1 Bargaining unit seniority shall be defined as the length of an employee's continuous service with the Authority in a bargaining unit position. The employee with the most continuous service shall have the greatest bargaining unit seniority, and the employee with the least continuous service shall have the least seniority. Bargaining unit seniority shall be computed in years, months, and days from the date of last hire as an employee in any position contained in the bargaining unit. Facility seniority shall be defined as the length of an employee's continuous service with the Authority at a particular DRBA facility. The employee with the most continuous service at his respective facility shall have the greatest facility seniority, and the employee with the least continuous service at his respective facility shall have the least facility seniority. Facility seniority shall be computed in years, months, and days from the last date of assignment to the facility. In the event of a reorganization or restructuring resulting in the mandatory movement of employees between facilities, employees shall retain their prior facility seniority and shall be dovetailed onto the facility seniority list. For seniority purposes, the following locations shall be considered facilities: Cape May (Cape May Airport and Cape May Terminal); New Castle (New Castle County Airport and Delaware Memorial Bridge); Lewes; Millville; and Cheswold/Dover. Classification seniority shall be defined as length of continuous service in a permanent classification and in all other higher classifications held by the employee on a permanent basis except in cases of a voluntary demotion not covered by Article 11.6, or, a disciplinary demotion for cause, or, suspension. The Authority shall maintain a list which sets forth the hierarchy of classifications of positions at each facility. An employee's seniority shall commence after the completion of the employee's probationary period. Upon successful completion of the employee's probationary period, seniority shall be computed from the employee's last date of hire. The Authority shall maintain and post at each facility an updated seniority list which shows the individuals ' bargaining unit seniority , facility seniority, and classification seniority . This shall be posted once a year . A copy of the list shall be provided to the Union as well as copies of any changes to the list as they occur. Layoffs of non-probationary full-time employees shall be in inverse order of classification seniority by facility. The least-senior employee in the affected classification at the facility in question shall be laid off first. Any employee displaced by a layoff in their permanent classification may exercise classification seniority either by displacing the least-senior employee in his permanent classification at another facility or by displacing the least-senior employee in any lower-rated classification at his facility provided that the bumping employee is
1 1 I
I 11.2
11.3
11.4
11.5
11.6
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7
11.7
qualified to perform all the assigned duties of the employee to be bumped. An. employee who is displaced by a s
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