CASE 3

Nearly 85 percent of the residents of the south Arizona city ofAvondale were Latinx, and many residents spoke only Spanish. Manyof the city's civil service jobs, including the fire dispatcher,comprised the bargaining unit represented by the CommunicationsWorkers of America (CWA) Local 5.

Enrique Calderon was a fire dispatcher for the City of Avondaleon the 7:00 A.M. to 3:00 P.M. shift. A regular dispatcher on the11:00 P.M. to 7:00 A.M. shift started maternity leave on November23, which caused a temporary (six-month) vacancy on this shift. Totemporarily fill this vacancy until a six-month replacement couldbe found, Fire Chief Edward Scalia transferred Calderon to the11:00 P.M. to 7:00 A.M. shift because Calderon was bilingual.

The chief then posted a vacancy notice for a temporarydispatcher for the 11:00 P.M. to 7:00 A.M. shift and stated thatthe dispatcher must be bilingual. However, no one volunteered, sothe chief transferred Calderon to fill the position until the priordispatcher returned from maternity leave six months later. WhileCalderon was the most junior bilingual dispatcher, he was not themost junior dispatcher. In fact, Calderon had enough seniority towork a shift other than 11:00 P.M. to 7:00 A.M., and the transferwas made despite his objection. The city freely admitted thatCalderon was transferred because of his ability to speakSpanish.

Calderon, however, did not want to work the 11:00 P.M. to 7:00A.M. shift and thus filed a grievance requesting to be transferredback to his day shift immediately because the city violated thecollective bargaining agreement.

TESTIMONY AT THE ARBITRATION HEARING

At the grievance hearing, the city's personnel directortestified that the city had considered language ability as a factorin establishing schedules for the last 10 years, especially for thefire dispatcher and police complaint officer positions. In fact,the city's schedules specified the number of bilingual workersrequired per shift. Consequently, shift assignments were based notsolely on seniority but also on language ability. Examples could becited of junior employees who were promoted instead of more senioremployees because of language ability. Finally, the city's recentlyenacted hiring policy required all new fire dispatchers to bebilingual.

Both parties agreed that Enrique Calderon's transfer was basedon his language ability and that he had the seniority to work adifferent shift.

POTENTIALLY RELEVANT CONTRACT PROVISIONS

ARTICLE 6: MANAGEMENT RIGHTS

Section 1. The union agrees that the city has and will continueto retain, whether exercised or not, the right to operate andmanage its affairs in all respects; that the powers or authoritywhich the city has not officially abridged, deleted, or modified bythe express provisions of this agreement are retained by the city.The rights of the city, through its management officials, shallinclude, but shall not be limited to, the right to determine theorganization of city government; to determine the purpose of eachof its constituent departments; to exercise control and discretionover the organization and efficiency of operations of the city; toset standards for service to be offered to the public; to directthe employees of the city, including the right to assign work andovertime, to hire, examine, classify, promote, train, transfer,assign, and schedule employees in positions with the city; tosuspend, demote, discharge, or take other disciplinary actionagainst employees for proper cause; to increase, reduce, change,modify, or alter the composition and size of the workforce,including the right to relieve employees from duties because oflack of work or funds; to determine the location, methods, means,and personnel by which operations are to be conducted, includingthe right to determine whether goods or services are to be made orpurchased; to establish, modify, combine, or abolish job paypositions; to change or eliminate existing methods of operations,equipment, or facilities; to determine the methods, means, andnumber of personnel needed or desirable for carrying out the city'smission and to direct the workforce.

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Section 5. Delivery of municipal services in the most efficient,effective, and courteous manner is of paramount importance to theCity of Avondale. Such achievement is recognized to be a mutualobligation of both parties in their respective roles andresponsibilities.

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ARTICLE 10: NO DISCRIMINATION

Section 1. The city and the union agree that the provisions ofthe agreement shall be applied equally to all employees in thebargaining unit without discrimination as to age, sex, maritalstatus, race, color, creed, national origin, or politicalaffiliation.

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ARTICLE 30: LAYOFF AND RECALL

Section 2. Recall

A. Employees shall be called back from layoff according to thesame criteria for layoff (i.e., the most senior person will berecalled unless in the city's judgment special skills arerequired.

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ARTICLE 31: SENIORITY

Section 1. All provisions within this article shall constitutethe basis for establishing a uniform procedure of seniority forvacations, shift transfers, days off preference, and overtime.

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Section 4. It is recognized that the principle of merit must begiven consideration in any "efficiency conscious” organization;therefore, the department/division heads reserve the right to finaldetermination regarding employee transfer, shift assignment, daysoff, and vacation time.

QUESTIONS

1. As the City of Avondale personnel director, how would youpresent your case that the transfer of Enrique Calderon did notviolate the agreement?

2. As a local union official, how would you argue that theCity's action regarding Enrique Calderon' transfer violated thecontract?

3. As an arbitrator, how would you rule? Why?