Federated University POA Fights City Hall — and Wins

JASON M. EWERT
Managing Attorney
Mastagni Holstedt, APC

he memorandum of understanding (MOU) between the University of California and the Federated University Police Officers Association (FUPOA) that was in effect from July 1, 2017, to December 31, 2020, provided that specialty assignments were not stackable for the purposes of determining compensation, and an officer assigned to more than one specialty assignment was paid for only a single assignment. The MOU also provided that the position of corporal and field training officer (FTO) were considered separate specialty assignments, and officers were only eligible to receive a fixed maximum of 5% of their base pay for specialty assignments, regardless of the number of specialty assignments assigned. The only exception to this provision, under the terms of the prior MOU, was that officers assigned to the System-Wide Response Team (SRT) would receive an additional 5% of their base pay for SRT service.

In November of 2021, FUPOA and the University of California began negotiating a successor MOU. Throughout the negotiations, FUPOA expressed its clear objective to improve the economic standing of its members by modifying the specialty pay provisions of the existing MOU to include up to three stackable specialty assignments. The final negotiated terms afforded officers an additional 5% incentive over base pay for up to three specialty assignments, which were clearly delineated in the contract.

Approximately three months after completion of the negotiations, the chief of the University of California, Irvine, Campus Police Department (UCI) informed FUPOA of her intent to maintain a historical practice of assigning officers to the corporal position, while also requiring them to perform the duties of an FTO. The catch was that she confirmed her intent to compensate those officers assigned to the combined position with only one additional 5% specialty pay for the performance of both assignments. In response, FUPOA voiced disagreement based on the recent negotiations, which sought to modify this past practice in the interest of the officers. Throughout the formal grievance process, UCI continuously dismissed the claim that corporal and FTO were separate positions. UCI stated that FUPOA was aware of the combined nature of these assignments during negotiations, and the plain language of the contract did not require officers assigned to both positions to receive the stackable specialty pay.

After exhausting the grievance process, FUPOA appealed to arbitration. At arbitration, both parties contended that their interpretations of the plain meaning of the contract were correct. UCI attempted to claim that the language of the contract granting the chief sole discretion to establish and modify the specialty assignments, combined with a departmental policy that predated the new contract, supported its authority to combine corporal and FTO into one assignment and only pay one of the required incentive pays. The policy relied on by UCI provided that “[t]he Corporal Specialty Assignment provides Officers with the opportunity to develop their skills as a field training officer (FTO) tasked with training new officers and professional staff to meet the needs of the Department.” Further, the policy outlined the duties for other specialty assignments, including, but not limited to, an “FTO Only” specialty assignment. UCI argued that FUPOA never raised any concerns about UCI’s internal policy document or any of the established specialty assignments at UCI during the contract negotiations. UCI’s arguments that an employer could somehow subvert its contractual obligations by relying on department policy were not successful. On behalf of FUPOA, Mastagni Holstedt attorney Jason Ewert successfully argued the union’s position that the bargaining history, the specific delineations of corporal and FTO in the contract and the practices of other UC campuses supported the payment of two bonuses to officers assigned to corporal/FTO.

Nearly two years after initiation of the grievance proceedings, arbitrator Fredric Horowitz sustained FUPOA’s grievance, issuing a binding decision that found UCI violated the MOU by not providing a second 5% specialty pay for a corporal/FTO assignment. UCI was also ordered to make whole any corporal/FTO who was denied a second stackable specialty pay, retroactive to the effective date of the MOU. The arbitrator recognized that the language of the contract supported the contention that the corporal and FTO positions are designated separately, and the performance of each requires its own specialty pay. He noted that the record failed to support UCI’s argument that the discretion afforded to management should supersede the separate compensation outlined in the contract.

This case serves as a warning to other labor associations to be vigilant against employer attempts to circumvent the terms of a labor contract through policies or practices that may have been established prior to the ratification of a controlling collective bargaining agreement. Here, FUPOA negotiated a contract to award its members improved conditions for specialty pay bonuses, and UCI attempted to subvert the agreed-upon terms by inserting a previously non-negotiated interpretation of the contract that was based on a campus-specific policy that existed prior to the ratification of the negotiated contract. Thanks to the successful arguments put forth by FUPOA and the recognition of the arbitrator, such an interpretation by UCI was corrected in this case.

About the Author

Jason M. Ewert is a managing attorney in the Labor and Employment Department at Mastagni Holstedt, APC. His practice focuses on labor and employment law, with a specific emphasis on advising and representing public employee associations and their members. He represents clients in disciplinary matters, grievances, unfair labor proceedings, critical incidents and civil writ proceedings. Jason is also a POST-certified instructor and has conducted numerous trainings concerning the Public Safety Officers Procedural Bill of Rights, Meyers-Milias-Brown Act and other statutes guaranteeing labor and employment rights to employees