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DPA Case Number 00-F-0052 - Demotion in Lieu of Layoff

​DPA Case Number 00-F-0052 - Demotion in Lieu of Layoff

Final Non-Precedential Decision Adopted: October 12, 2000
By: Howard Schwartz, DPA Chief Counsel

DECISION

This matter was heard before Mary C. Campisi, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 9:00 a.m. on August 23, 2000, at Riverside, California, and at 9:00 a.m. on September 19, 2000, at Sacramento, California.
Appellant was present and was represented by Gerald James, Attorney at Law, Professional Engineers in California Government (PECG).
Marie Eppler, Legal Counsel, DPA, represented the California Public Utilities Commission (CPUC), respondent.
Evidence having been received and duly considered, the ALJ makes the following findings of fact and Proposed Decision.

I - JURISDICTION

The above Demotion in Lieu of Layoff, Report of Current Performance and appellant's appeals therefrom comply with the procedural requirements of Government Code sections 19997, 19997.14, and 19997.3(b), DPA Rule 599.845, and Article 13, section 13.1 of the Unit 9 (PECG) Collective Bargaining Agreement.1
The matter was originally set for hearing on July 17, 2000, at Sacramento, California, but was continued to August 23, 2000, for good cause shown.

II - CAUSE FOR APPEAL

By memo dated May 26, 2000, respondent notified appellant that CPUC was abolishing her classification as an SRTCCSS due to lack of work and that she was scheduled to be laid off effective June 30, 2000. The memo also advised her that she had been given a seniority score of 99 based upon a Report of Current Performance which deducted 36 points from her seniority score of 135 points. (The report rated appellant's current performance as unsatisfactory.) Finally, the memo advised her that she had secondary demotional rights to Utilities Engineer and a position was available for her in that class in Los Angeles.
On June 6, 2000, she appealed the Report of Current Performance as not made in good faith and/or otherwise improper.2 She appealed the demotion on the ground that there remains sufficient work in her class to justify her position.

III - STIPULATED SETTLEMENT

APPEAL FROM REPORT OF CURRENT PERFORMANCE
On the first day of hearing, the parties stipulated settlement of the seniority score calculation as follows.
1. Appellant withdraws her appeal from seniority score calculation dated June 5, 2000.
2. Respondent agrees to remove the Notice of Layoff dated May 26, 2000, and all accompanying documentation from appellant's official personnel file no later than ninety (90) days after a decision issues from DPA in the matter of appellant's layoff (Case No. 00-F-0052).
3. The parties agree that respondent shall seal and retain the said notice and documentation in a confidential file in a secured area of the Human Resources Office of the CPUC and said file and documentation shall only be opened in the event of future litigation regarding events surrounding appellant's layoff.
4. The parties understand that respondent may retain appellant's Individual Development Plan/Performance Appraisal dated January 14, 2000, and appellant's rebuttal in appellant's official personnel file.
5. The parties enter into this agreement freely, knowingly and voluntarily by and with the advice of their counsel.

IV - GENERAL BACKGROUND

In 1976 the CPUC established three (3) specialist classifications for the purpose of regulating the engineering and operations sections of the Bay Area Rapid Transit (BART) System. These classifications were "SRTCCSS," "Senior Reliability and Quality Engineer," and "Senior Rapid Transit Control Systems Engineer." Two of the classifications, "Senior Reliability and Quality Engineer" and "Senior Rapid Transit Control Systems Engineer," were abolished as they became vacant since there were no longer duties appropriate to the classifications.
In March 1990 appellant was appointed to the remaining specialist class of SRTCCSS in the Safety Branch of the CPUC's Safety Division at Los Angeles. The objective of the Safety Branch was to ensure that each of California's local rail transit systems were designed, built, operated and maintained in a safe manner for the benefit of the general public and the employees of each transit agency. Appellant's initial job duties included performing specialized computational analyses for computer and mechanical control systems of light rail and rapid transit systems, performing complex studies of control functions for such systems, analyzing system flow charts to check programs and testing the results for accuracy and applicability. She also assisted the CPUC in its oversight role during the development of the Los Angeles County Metropolitan Transportation Authority's (LACMTA) Red, Green and Blue rail transit lines.
At the time appellant began working, CPUC's oversight of rail transit was organized by geographic regions. Appellant worked out of the Los Angeles area. The CPUC assigned its employees to work on particular projects on an as-needed basis. Employees in the Safety Branch fell into two broad categories: those with general engineering backgrounds, and those, such as appellant, with more specialized knowledge. For any particular project, the CPUC would assign engineers or specialists or both to complete the tasks.
On January 26, 1996, the Federal Transit Administration (FTA) issued a new regulation entitled "Rail Fixed Guideway Systems; State Safety Oversight" set forth at 49 CFR 659 (Final Rule). The Final Rule provided for safety oversight by states of rail transit systems which were not under the jurisdiction of the Federal Railroad Administration. The Final Rule required each state to designate an agency to oversee the safety of its rail transit systems. The rule also imposed on the designated state agencies the responsibility for performing on-site safety review of each transit property at least once every three years and increased the states' involvement in the investigation of accidents and unacceptable hazards of the systems and in performing other duties related to security, such as criminal and terrorist acts. The Governor of California designated CPUC as the agency to provide the safety oversight of transit systems required by the Final Rule.
As a consequence of its new responsibilities, CPUC reorganized its Safety Branch into two units. One unit, the System Safety Oversight Unit, was comprised of those employees whose had general engineering skills which would enable them to act as designated representatives to each transit system. The second unit, the System Safety Specialist Unit, was comprised of employees who had specialized knowledge of different aspects of the rail system (such as computer control systems and railroad operations) which would enable them to provide the technical expertise needed to support the designated representatives in performing their functions, as prescribed in the branch's new "Procedures Manual for State Safety Oversight of Rail Fixed Guideway Systems." Since there were six Utilities Engineers in the Branch, one was assigned to each of the six transit systems as that system's designated representative. The remaining employees (specialists) were to be used on an "as needed" basis in their support functions.
Appellant was placed in the System Safety Specialists Unit with the other specialists because she did not have general engineering skills but rather possessed very specialized skills related to automated train controls. It was envisioned that she would be relied on to provide specialized expertise for technical and operating issues related to the automatic control systems of the rail transit systems.
Since the reorganization, the role of the engineers (who are the designated representatives to the transit systems) has evolved such that they have proved capable of handling the oversight without the need of specialized support. Clearly, the decreased need for the expertise of specialists is due in large part to the adoption of the oversight approach to rail transit regulation. In effect, it relieved CPUC from a hands-on involvement in transit systems. In the past CPUC actually inspected various components of rail transit systems, including their computer operating systems, in order to ensure their safety. Also, CPUC had its employees perform first line inspection activities, which are no longer feasible given the complexity of automatic train control systems.
In contrast under the oversight approach, each rail transit system is ultimately responsible for its own design and construction projects and for compliance with the safety of its own systems. The CPUC, in turn, monitors the transit agencies' attention to safety for the design and construction projects on a sample basis. It does so by reviewing selected drawings and specifications, witnessing testing, and reviewing safety-related records. Additionally, the CPUC oversees the investigation of accidents and unacceptable hazardous conditions and conducts safety audits of transit agencies' operations, maintenance and security procedures.
According to the evidence presented at hearing, CPUC has determined that the employees who most effectively provide this kind of oversight are those with general engineering backgrounds, rather than with special skills. Therefore, CPUC's safety oversight is currently assigned to Utilities Engineers, Senior Utilities Engineers and Supervising Transportation Engineers.

V - GOOD FAITH EFFORTS TO AVOID LAYOFF

When CPUC's safety program changed from a primarily regulatory approach to an oversight approach and there was little or no work left for the specialists, CPUC did not immediately invoke layoffs. It attempted to resolve the problem of lack of work through attrition. All of the employees in specialist positions, with the exception of appellant, moved on to other jobs. Their specialist positions were eliminated when they left.
Appellant continued to work in her classification as an SRTCCSS. Her supervisor assigned her primarily safety oversight projects of the nature that could be performed by engineers. There were no requests from transit agencies for her expertise and no requests from the engineers for her assistance. Appellant's supervisor testified that as a consequence of the changes and the very specialized work appellant was hired to perform, he was and still is unable to give her work appropriate for her class.
Appellant's supervisor testified at the time of the reorganization and redirection of resources, he believed that the designated representatives would "pull her up for their work if it was too difficult." However, they have demonstrated they do not need the help of a specialist since they do not have hands-on involvement with automatic train controls. Instead, the designated representative's role is to assess and ensure the local transit system(s) conform to the Safety Certification Plans which have been developed for transit safety.
In October 1998, the supervisor met with appellant to discuss the lack of specialized work to assign her. He advised her that since there was no longer any work for an SRTCCSS and she was the sole remaining specialist, CPUC intended to eliminate the classification.
He suggested she consider a transfer to a comparable position in the San Francisco Bay Area where there were more job opportunities with CPUC. Appellant did not want to move. He also advised her of other positions in Los Angeles which might become available such as Senior Transportation Operations Supervisor, Railroad Safety; Senior Transportation Rate Expert; Senior Transportation Representative, Motor Carrier; and Public Utility Regulation Analyst V. He offered to interface with the Human Resources Division in order to assist her in obtaining a comparable position in Los Angeles. Further, he suggested she prioritize her preferences and get back to him by November 11, 1998, so that they could move forward with a position change. The supervisor testified, "[appellant] never got back to me." Appellant continued to work in the class of SRTCCSS throughout 1999.
Appellant's supervisor spoke with her in 1999 about the possibility of creating a training and development assignment (T&D) to Utilities Engineer. He had determined that Utilities Engineer was the only potentially comparable position in the Branch for appellant because appellant did not have the professional engineering certificate required to laterally transfer into the position of Senior Utilities Engineer. The T&D would allow appellant to retain her current salary for one year; and during that year, she could train for and take the professional engineering examination. When she passed the examination, she would become a certified engineer and could promote to Senior Utilities Engineer 3 with no loss in pay.
On December 15, 1999, the Human Relations Manager sent a memorandum to appellant entitled "Proposed Solution for Resolving Your Position Classification." The memorandum formally offered appellant the T&D. It also advised her of the reason for the offer, which was that, due to changes over the years of the way CPUC regulated rail transit systems, there was no longer a need for the skills of an SRTCCSS. The memorandum also warned appellant that if she were not able to obtain her professional engineering certificate by February 28, 2001, CPUC would need to initiate a layoff due to lack of work for the classification of SRTCCSS.
Appellant did not accept the offer. Instead, on January 7, 2000, appellant prepared a letter asking a number of questions regarding the offer and her work.
On January 14, 2000, appellant's supervisor met with her and presented a formal outline of the work she would perform if she accepted the T&D assignment. Appellant would not accept it. She asked her supervisor for more time. He extended the time to January 31, 2000. Appellant still did not accept the offer.
Appellant is unwilling to accept the determination of CPUC that it does not currently have the specialized work which she was hired to perform in 1990.

VI - LAYOFF

On February 17, 2000, CPUC requested approval from DPA to conduct a staff reduction in the class of SRTCCSS since there was a lack of work for the remaining employee in that position. DPA's Classification and Compensation Division approved the reduction.
Respondent issued appellant a notice of layoff due to "lack of work" on May 26, 2000. Appellant does not challenge the procedures but only respondent's claim that there is no longer work for her as an SRTCCSS.

VII - WAS THERE LACK OF WORK?

At the hearing appellant argued that her classification should not have been abolished because there is sufficient automatic train control specialty work to justify her retention as an SRTCCSS. She also argued that CPUC has parceled her work out to other employees in the Utilities Engineer classification and that those employees are working out of class in performing those duties.
Appellant placed in evidence internal memoranda and letters which issued during 1999 and 2000. The memoranda and letters demonstrate that various staff members at CPUC have attended meetings with representatives of transit systems relating to automatic train control and safety. They have conducted reviews of testing performed by systems on their automated train controls. They have evaluated reports of a "near miss accident" and the impact on the affected transit system's operations and safety program. One of the letters is from CPUC to LACMTA acknowledging the acceptance of LACMTA (systems) certifying the safety-readiness of a segment of the Metro Red Line project.
The memoranda and letters do not prove that there is specialist work available in automated train control or that the designated representatives are working out of class. Consistent with the testimony of appellant's supervisor, they demonstrate that the designated representatives (who interface with the transit systems) are performing oversight and audit functions of the transit systems, consistent with the Final Rule and with their class specifications.
The usual tasks for engineers in both the Utilities Engineer and Senior Utilities Engineer classes4 include, but are not limited to, conducting investigations and preparing reports involving engineering economic work, which includes studies of safety, system reliability and operating efficiency; monitoring and assessing the effectiveness of incentive mechanisms; evaluating the adequacy, reliability and quality of service; participating in safety audits of rail transit systems; investigating accidents of transportation facilities and recommending corrective action; inspecting rail transit systems for compliance with Commission rules, regulations and orders; examining rail transit highway crossing; and preparing correspondence, reports, safety oversight plans and exhibits. Further, such employees are expected to have knowledge and advanced education in engineering fundamentals as well as engineering mathematics and computer application to engineering problem solving consistent with these assigned tasks.
The memoranda and letters do not demonstrate any necessity for CPUC to develop, recommend or negotiate new standards or procedures for the automated control systems used by any of the transit systems. And, they do not demonstrate a need for CPUC to make complex studies of computer control functions for any transit systems, which were the primary responsibility of an SRTCCSS prior to 1996.
Appellant testified that, consistent with her job specification, she could still provide a number of services as an SRTCCSS, including assisting with the program and controls of local systems, modifying safety plans to include the latest technologies, evaluating automatic train control for local systems and observing operations, reviewing contract drawings and testing of automated train controls, evaluating and observe operations, attend meetings and recommend improvements to automated systems, recommending software development for automated train systems and performing other services related to automated train control. However, many of the services suggested are currently the responsibility of local transit agencies who rely in part on special contracts. The rest are of a nature to constitute general oversight duties, currently performed by the designated representatives at CPUC.
 
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PURSUANT TO THE FOREGOING FINDINGS OF FACT THE ALJ MAKES THE FOLLOWING DETERMINATION OF ISSUES:

Government Code section 19997.14 provides that an employee may be laid off by an appointing power when it is necessary because of lack of work or funds, or whenever it is advisable in the interest of economy to reduce staff of any agency. It also provides that an appeal may be made to DPA within 30 days after receiving notice of layoff "on the ground that the required procedure has not been complied with or that the layoff has not been made in good faith or was otherwise improper." Section 19997.14 further states that in rendering the decision on a layoff, DPA may order reinstatement of the employee, with our without pay, if it appears that the right procedure was not followed, the layoff was not made in good faith or the action was otherwise improper. In Peradotto v. State Personnel Board (1972).
25 Cal.App.3d 30, 36, the court described the appropriate scope of review by quoting Placer County Employees Assn. V. Board of Supervisors (1965) 233 Cal.App.2d 555, 559:
"The courts have adopted the criterion of good faith to weigh the legality of actions abolishing civil service positions. The action will be upheld if taken in good faith, but invalidated if it is a subterfuge for the piecemeal dissolution of the civil service system or a sham method of ousting an unwanted employee. Reorganization of governmental offices promulgated in good faith and for reasons of efficiency or economy does not 'nullify the basic principle' of civil service even though it results in abolition of one or several civil service positions."
In the instant case there was no showing of bad faith or other impropriety which would invalidate the staff reduction by layoff. The evidence revealed that respondent conducted the layoff because there is currently a lack of work at the CPUC for an SRTCCSS--a highly specialized employee classification responsible for automated train control systems.
The impetus for the layoff was the FTA's promulgation of the Final Rule, which imposed upon the states, and particularly upon the CPUC in California, additional responsibility for safety oversight of fixed rail guideway systems. As early as 1996 and in the years following, CPUC's management determined that in order to effectively comply with the new federal regulations and existing state and federal regulations affecting its six transit systems, it would reorganize its Safety Branch and redirect its attention from a hands-on regulatory approach to a safety oversight approach to transit systems.
After the reorganization, there was little if any call for the specialized resources of those individuals who provided expertise in such areas as automated train control and railroad operations. Initially, they were kept on and provided the work of generalists (engineers) while they looked for other jobs. Others left; appellant did not. CPUC could not continue to maintain and pay a specialist who did not perform work consistent with her job specification. Only after CPUC made informal and formal attempts over a two-year period to encourage appellant to transfer or to accept a T&D with training for certification and promotion into a Senior Utilities Engineer position and only after those attempts were repeatedly rebuffed did CPUC move forward with the staff reduction. The reduction was accordingly approved by DPA and effectuated in June 2000.
Appellant failed to prove her claim that respondent acted in bad faith or improperly because there was work available for her in her class of SRTCCSS. Appellant did not produce any evidence that she has been performing designated specialist work (as set forth in her job description or the tasks outlined in the SPB specification) in recent years or that such work is required by any employee in the Safety Branch at CPUC. In fact, the local transit systems now employ or contract for the services of individuals who have expertise in areas such as automated train control. As appellant's supervisor put it, CPUC now basically audits the safety of local transit systems. It is in that context that appellant's services as a specialist are no longer required.
Appellant also failed to prove bad faith or other impropriety with respect to the assignment of her duties to Utilities Engineers. Government Code section 19997.1 provides that the duties performed by any employee laid off may be assigned to any other employee or employees in the State agency holding positions in appropriate classes. Some of appellant's duties were and are overlapping with those of the Utilities Engineers, as indicated by the definitions and tasks outlined in their SPB specifications. As a result of reorganization, those tasks formerly performed by appellant were reassigned to Utilities Engineers. The evidence did not prove that the engineers were performing duties outside their class and apparently none have filed out of class claims, pursuant to Government Code section 19818.16. At most, appellant proved there were overlapping (generalist) duties which could be (and are) performed by designated representatives in the Utilities Engineer and Senior Utilities Engineer classifications.
In summary, the evidence established that respondent's decision to reallocate its resources so that it might fully comply with the Final Rule regarding rail transit safety oversight was well within its discretion. Respondent did not demonstrate any partiality or bad faith towards any of its employees at the time it decided to reorganize its resources to respond to the Final Rule. Further, the purpose of the subsequent layoff was clearly the result of lack of work at the State level for a specialist in the area of automated train control. The local transit systems now rely upon their own specialists in that area to ensure safety of the systems. Further, respondent not only complied with the proper procedures for layoff but also made several efforts to avoid a layoff by working one-on-one with appellant to find other job alternatives.
It is concluded, therefore, that appellant failed to meet her burden of proof and persuasion that the required statutory and regulatory procedures were not complied with by CPUC, that the layoff was not made in good faith or that the layoff was otherwise improper. For the reasons set forth above, the appeal from demotion in lieu of layoff should be denied.
 
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WHEREFORE IT IS DETERMINED

that the appeal from demotion in lieu of layoff effective June 30, 2000, is hereby denied and the demotion is sustained.
 
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FOOTNOTES

1. Subsection H of Article 13, section 13.1 provides as follows: "Any dispute regarding the interpretation or application of any portion of this layoff provision shall be resolved solely through the procedures established in the Government Code section 19997.14. The hearing officer's decision shall be final and upon its issuance the Department of Personnel Administration (DPA) shall adopt the hearing officer's decision as its own. In the event that either the employee(s) or appointing power seeks judicial review of the decision pursuant to Government Code section 19815.8, DPA, in responding thereto, shall not be precluded from making arguments of fact or law that are contrary to those set forth in the decision."
2. The reduction of 36 points from appellant's seniority score did not adversely impact her because she was the only employee in the class of SRTCCSS.
3. The examination for certification is given twice yearly. Appellant would have two opportunities to take and pass the exam during her proposed T&D.
4. The definitions set forth in the SPB specifications for the classes are set forth at page 2 above.
 
  Updated: 5/22/2012
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