IN ARBITRATION PROCEEDINGS

 

PURSUANT TO AGREEMENT BETWEEN THE PARTIES

 

In the Matter of a Controversy                             )

                                                                                       )

            Between                                                              )

                                                                                       )

STATE OF CALIFORNIA, STATE                               )

COMPENSATION INSURANCE FUND                     )

                                                                                       )

                                                Employer,                        )        OPINION AND AWARD

                                                                                       )

            and                                                                      )        FRANK SILVER,

                                                                                       )        Arbitrator

CALIFORNIA ATTORNEYS, ADMINISTRA­-            )

LAW JUDGES, AND HEARING OFFICERS               )

IN STATE EMPLOYMENT,                                         )

                                                                                       )

                                                Union.                             )        October 21, 2004

                                                                                       )

RE: Grievance of Glenn Grossman and                 )

Jorge Vargas                                                                   )

___________________________________________ )

 

            This dispute arises under the Collective Bargaining Agreement between the above-named

 

parties. Pursuant to the terms of the Agreement, this Arbitrator was selected to hear the evidence

 

and to determine the issues.

 

            A hearing was conducted on September 17 and October 19, 2003 and February 25, 2004, in

 

Salinas, California, at which time the parties had the opportunity to examine and cross-examine

 

witnesses and to present relevant evidence. Both parties submitted closing briefs, which were

 

received by the Arbitrator on May 18 and 19, 2004.

 

1

 

APPEARANCES:

 

            On behalf of the Employer:

 

                        Edmund K. (Deak) Brehl, Labor Relations Counsel

                        Department of Personnel Administration

 

            On behalf of the Union:

 

                        Gary M. Messing

                        Carroll, Burdick & McDonough, LLP

 

ISSUE

 

            Has the State Compensation Insurance Fund violated the Memorandum of Understanding by

 

failing to compensate Mr. Grossman and Mr. Vargas at a higher rate during the grievance period for

 

working out of class as Attorney III's? If so, what is the appropriate remedy?

 

RELEVANT CONTRACT PROVISION

 

15.3. Out-or-Classification Grievances and Position Allocation Hearing Process              

    * * *

 

B.   Definitions.

1. An employee is working "out-of-class" when she/he spends a majority (i.e., more than 50 percent) of his /her time over the course of at least two (2) consecutive work weeks performing duties and responsibilities associated with a higher level existing classification that do not overlap with the classification in which said employee holds an appointment.

 

Duties that are appropriately assigned to incumbents in the employee's current classification are not out of class. Duties appropriately assigned are based on the definition and typical tasks enumerated in the California State Personnel Board specification.

 

FACTS

 

A. Background.

 

            The Grievants, Glen Grossman and Jorge Vargas, were, during the applicable grievance

 

periods, Staff Counsels, Range D, in the Salinas office of the State Compensation Insurance Fund.

 

The grievance period for each begins on September 6,2001, twelve months before their joint out-of

 

2

class grievance was filed.[1] Grossman was promoted to Staff Counsel III (Specialist) effective January

 

1, 2003, effectively ending the period of his grievance. Vargas competed unsuccessfully for the

 

Specialist position that was awarded to Grossman, and he remains a Staff Counsel D, so that his

 

grievance is ongoing.[2]

 

            Grossman was hired by the State Fund in 1989, and Vargas was hired in 1991. Both had

 

progressed to Range B well before September, 2001. At that time, there were six attorneys in the

 

office, including Miguel Estrada, the attorney-in-charge. There was one Specialist, Berry Cannon,

 

and there were three Range B attorneys, Steve Pickering, Grossman, and Vargas. The sixth attorney

 

was Caron Mesa, who had recently been hired as a staff counsel C.

 

            Pickering, Grossman, and Vargas all competed for an additional Specialist position that was

 

authorized in 2001, and Pickering was promoted to that position in February, 2002. At about the

 

same time, Cannon retired, and there was only one Specialist in the office until Grossman was

 

promoted in January 2003. In 2002, two additional staff counsel A's were hired, Joseph Mendoza

 

and Luma Serrano. Serrano left in February, 2003, and after several months was replaced by Nikki

 

Kaur, who came in at the C level, based on her prior experience as a SCIF claims adjuster. Therefore,

 

during most of 2003, Vargas was the senior staff counsel, and there were two or three attorneys with

 

less experience on the staff. In February, 2004, Serrano returned to a newly authorized position,

 

bringing the total complement to seven: Estrada, as attorney-in-charge, Pickering and Grossman as

 

Specialists, and Vargas, Mesa, Serrano, Kaur, and Mendoza as staff counsel.

 

            The Specialists and staff counsel each carry their own caseload. The following chart, entered

As State Exhibit 1, shows the comparative caseloads, including the number of assigned “serious and

willful” (S&W) cases:

 

	12/31/01		12/31/02		12/31/03
	cases	[S&W]	Cases	[S&W]	cases	[S&W]
M.Estrada	70	[0]	80	[0]	152	[0]
B.Cannon[3]	320	[4]	X	X	x	x
S.Pickering[4]	291	[2]	349	[6]	415	[11]
G. Grossman[5]	290	[1]	349	[6]	398	[10]
J.Vargas	316	[4]	346	[3]	370	[3]
C.Mesa	162	[2]	285	[0]	362	[0]
lMendoza	x	x	249	[0]	328	[0]
L. Serrano	x	x	238	[0]	x	x
N.Kaur	x	x	x	X	279	[0]
total	1449	[13]	1896	[15]	2298	[24]
average caseload / # of attys  263   /     5.5			291   /      6.5		353  /	6.5

 

B. Categories of complex cases.

 

            As discussed in the Discussion portion of this decision, the SCIF job descriptions and the

 

State Personnel class specifications describe the typical duties of attorneys in part based upon the

 

complexity or level of difficulty of the cases that they are expected to handle. A substantial portion

of the testimony related to the categories of cases considered to be the most complex or difficult, and

 

the Union called as witnesses two active applicants' attorneys in the Salinas area, Michael Rucka and

 

Jim Gonzalez, to provide their assessments of the relative complexity of the cases and to give their

 

perceptions of the manner in which cases were assigned to attorneys in the SCIF office. Both Rucka

 

and Gonzalez testified that from their frequent dealings with all attorneys in the SCIF office, they had

 

no clear understanding of the ranking of attorneys, and that the cases in which the employer has been

 

represented by Pickering, Cannon, Grossman, or Vargas have been of comparable difficulty.6

 

            Rucka testified that 40-50% of the cases he files are complex, since the routine cases are

 

generally resolved at the adjuster level (Tr. 1, 57). Gonzalez estimated that 30-35% of his cases are

 

complex or difficult (Tr. 2, 106-7). The categories of cases described by Union witnesses as complex

 

are as follows:

 

            "Serious and Willful" (S&W) cases.  S&W cases involve claims that the employer has violated

 

a safety order or has provided an unsafe workplace causing the industrial injury, such that the

 

employer may be liable for a penalty amounting to a 50% increase in benefits paid to the employee.

 

Although SCIF does not indemnify employers for S&W claims, the employer may elect to be

 

represented by SCIF with respect to such claims. According to Rucka, such claims are more complex

 

due to discovery problems that are not normally present in workers' compensation cases. Estrada

 

and Berry Cannon both testified that not all S&W cases are complex, and that any complexities arise

 

during discovery where the facts develop in such a way as to create difficulties (Tr. 3, 35; Tr. 2, 79).

 

_________________________

 

6   Rucka noted that for the past several years his cases have not been assigned to Grossman, because he

(Rucka) had represented Grossman's wife in a workers' compensation case. Estrada confirmed that he has not

assigned cases in which the applicant is represented by Rucka or his partner, Peter O'Boyle, to Grossman, although

he has recently begun assigning Grossman to cases handled by junior attorneys in the firm.

 

5

Estrada testified that he does not make a practice of transferring cases, and that in a small office with

 

high caseloads it is a higher priority to maintain continuity on case assignments (Tr. 3, 36).

 

            Labor Code § 132a discrimination cases. Rucka testified that from an applicant's standpoint,

 

section 132a cases are factually difficult because it is necessary to establish that a personnel action

 

is retaliatory and against public policy as opposed to being taken in good faith. However, the

 

employer is directly liable for any penalty assessed for a section 132a violation, and SCIF neither

 

indemnifies nor defends private employers for section 132a claims. Although state agencies may elect

 

for SCIF to defend against such claims, Estrada testified that he recalled no case in which the office

 

had gone to trial on such a claim (Tr. 3, 33).

 

            Cases alleging different types of injuries. Rucka testified that complex cases include those

 

raising issues of whether an injury arose out of and in the course of employment (AOE/COE), or

 

questions of psychiatric disability, 100% disability, or where liability must be apportioned between

 

multiple parties due to a progression of the condition or pre-existing disability. Estrada agreed that

 

these categories of cases could be complex, but were not necessarily so. For instance 100% disability

 

cases can be complex where there is a dispute as to whether the medical evidence shows 100%

 

disability, because the benefits are substantially greater in such a case. However, with paraplegic,

 

quadriplegic or other severe disabilities, the case is not complex because the 100% rating is not

 

disputed. Similarly, multiple defendant cases may or may not be difficult, depending on the length

 

of employment by particular employers or which employer had the more arduous work. In general,

 

Estrada believes that the complexity of the case comes from many factors, including whether there

 

are new legal issues, unusual or complicated medical issues, high or low money claims (Tr. 3, 115).

 

            Department of Corrections cases. According to Rucka, cases in which the Department of

 

6

 

Corrections is the employer can be quite complex in spite of the fact that the legal presumptions that

 

apply to this work should make them easier. This is because a finding of disability can result in a

 

PERS disability retirement, making these high value cases. According to Estrada, these cases are

 

more difficult because of the personalities involve and the hard-line position taken by the Department.

 

In the early 1990's, the two prisons in the area wanted a dedicated team of attorneys to handle their

 

cases, and one of the prison managers requested Vargas personally. Vargas has been on the team

 

since that time, and for several years Pickering has been assigned. Vargas and Pickering were

 

exclusively assigned to handle Corrections cases, and because of the Department's desire to be

 

directly involved in the handling of the cases they have attended lengthy meetings on a monthly basis

 

to review the caseload and discuss strategy. The wardens from the two prisons in the area, Soledad

 

and Salinas Valley, have attended these meetings along with adjusters and other managers. Vargas

 

testified that there has been no difference in status between him and Pickering in these meetings in

 

terms of providing legal advice. He and Pickering have been responsible for approximately the same

 

number of Corrections cases of equal complexity.

 

            More recently, Estrada has begun to assign some Corrections cases to more junior attorneys,

 

including Luma Serrano (during 2002 before she left SCIF), Nikki Kaur, and Joe Mendoza. Vargas

 

testified that Estrada assigned him to supervise Serrano on two prison cases, and that he assisted her

 

daily on these and other cases (Tr. 2, 36). According to Vargas, Estrada assigned him specifically

 

to be the "lead attorney" and to "supervise" Serrano on the two prison cases, to go with her to the

 

prison and prepare the case for trial. They settled one of the cases, and Vargas was not aware of the

 

final disposition of the other case (Tr. 2, 110-111). According to Estrada, after he assigned the

 

prison cases to Serrano, she had concerns about how they should be handled and he asked Vargas

 

7

 

to help her with them. Estrada denied that he used the word "supervise" or "lead" with respect to

 

these cases (Tr. 3, 70-71).7

 

C. Method of assigning cases.

 

            Estrada described the process by which he assigns cases to the attorneys in the office. He

 

testified that he does not assign by rotation, although he does attempt to keep the caseloads fair and

 

balanced. He tries to fit the case to the particular attorney, the adjuster, and who the employer is and

 

what the facts are (Tr. 3, 72). He thinks that 90% of the cases fall in the C and D range of average

 

to above average complexity (Tr. 3, 42), with relatively few falling into either the entry level or

 

Specialist categories. Estrada thinks of a Specialist case as one that is very striking, such as one

 

where the adjuster's notes indicate that the employer expects special treatment, where there is a high

 

profile applicant, such as a prison warden, where there is a special medical condition such as AIDS,

 

or a sensitive case such as one involving a SCIF employee as applicant (Tr. 3, 41). "Catastrophic"

 

cases, for instance involving a severe injury leaving the worker paraplegic or quadriplegic requiring

 

specialized medical attention, would typically go to a Specialist, but there are relatively few such

 

cases. There are not enough cases requiring a Specialist to provide a full caseload to a Specialist, and

 

so they also get what Estrada considers to be C and D level cases (Tr. 3, 43).

 

________________________

 

7 Estrada testified that in general he expected Vargas and Grossman, as senior attorneys, to be available to answer questions and give advice to the junior attorneys in the office, but he denied assigning them, or Pickering or Cannon, to "supervise" other attorneys (Tr. 3, 69-70). Vargas testified that in addition to being asked to supervise Serrano on two prison cases, Estrada also assigned him to lead and supervise Caron Mesa in a case involving Larry Goodman, and that in fact he has reviewed and modified every pleading and settlement letter in the case, and has been involved in every meeting with the claims manager (Tr. 3, 114-115). Estrada testified that he asked Vargas to assist

Mesa with some depositions in the Goodman case, but he did not ask him to "supervise" her (Tr. 3, 69).  Mesa testified

that she told Estrada that she wasn't comfortable handling the deposition of the adjuster in the Goodman case, since Goodman was a former paralegal who raised numerous constitutional arguments and unusual claims. Estrada asked Vargas to help her and he attended the two depositions of the adjuster.  She testified that Vargas has reviewed most

of the pleadings in the case, after she has drafted them, and that she has consulted him on strategy and settlement issues (Tr. 3, 5-17).

 

8

 

            In making assignments, Estrada attempts to assign cases involving aggressive applicants'

 

attorneys, such as Rucka and Bruce Baum, to more experienced lawyers in his office, since those

 

cases become more difficult. He has been hampered in assigning these cases to Grossman, however,

 

because the conflict of interest issue involving Grossman's wife being represented by Rucka.

 

Grossman testified that he believed he should receive out-of-class pay for the period before he was

 

promoted to a Specialist, because his caseload did not change significantly after he was promoted.

 

Estrada testified, however, that he has gradually assigned more S&W cases to Grossman, and has

 

made him the lead attorney with respect to approximately 46 cases in which a particular surgery

 

center filed liens for outpatient surgery (Tr. 3, 72).

 

            Estrada testified that politically sensitive cases, such as those involving a warden or politician

 

as applicant, would normally be assigned to a Specialist (Tr. 3, 78). Vargas testified that he initially

 

handled a case in which the applicant was the mayor of Soledad, although he asked for it to be

 

reassigned when he became involved in the mayor's election campaign (Tr. 2, 43-4).8  Estrada

 

testified that he was not certain if this individual was the mayor at the time or became involved in

 

running for mayor (Tr. 3, 121).

 

POSITIONS OF THE PARTIES

 

The Union

 

            The Union argues that MOU section 15.3.B.1 establishes the SPB class specification as the

 

controlling definition, requiring a Specialist to perform the "most sensitive and complex legal work

 

of the department," and distinguishing that classification from lower classes by the level of difficulty

 

of the assignments and expertise of the incumbent. For Range D, the SPB specification provides that

_________________________

                        8 Also, he handled a sensitive case involving the wife of an associate warden.

 

Union's Position                                                         9

 

incumbents will "independently perform legal work of average difficulty." The evidence shows that

 

both Grievants spent more that 50% of their time handling the most complex cases in the office within

 

the meaning of the SPB definition.

 

            The SCIF job definition for Staff Counsel Range C and D assign the "most complex" type of

 

cases to this class, and represents an admission that the Grievants were expected to work out-of-class

 

as Specialists. The SCIF job definitions substantially overlap each other, assigning both Range C/D

 

attorneys and Specialists complex legal problems, but they depart greatly from the SPB specifications.

 

As a result, the SCIF job descriptions are evidence that Range D attorneys such as the Grievants

 

perform Specialist work on a regular basis without receiving commensurate pay.

 

            The testimony by experienced attorneys in the field defines what constitutes a sensitive or

 

complex case. Michael Rucka testified that cases alleging serious and willful misconduct are some

 

of the more complicated workers compensation cases, and that section 132a cases are more complex

 

than average. Rucka noted that he never saw SCIF reassign attorneys after complex issues develop

 

during the discovery process. He also testified that Department of Corrections, Department of

 

Forestry and CalTrans were complex due to the nature of the agencies. Permanent disability cases

 

are more complex due to the tremendous financial difference between a 99% and 100% disability

 

rating. Berry Cannon, and even Miguel Estrada, agreed that many of these categories of cases were

 

more complex, sensitive or difficult than average, i.e. S&W cases, 100% disability cases, AOE/COE,

 

apportionment cases, and cases involving public figures.

 

            Rucka also could not identify any difference in the types of cases handled by the Grievants

 

as opposed to Pickering or Cannon, nor could he discern where any of them were in the office

 

hierarchy. Similarly, Jim Gonzalez, another experienced applicants' attorney believed that all four

 

Union's Position                                                         10

 

 

attorneys were handling cases of the same complexity and sensitivity. Cannon also testified that they

 

were all handling the same types of cases, and that the Grievants covered for him in his absence.

 

            Grossman testified to a number of sensitive and complex cases that he handled, e.g. the

 

Sanchez matter, Salas, Sumpter, Beck, Tindle, McPherson, Brookshire, and Moore. Grossman

 

consistently carried a large caseload , and there was no significant change after he was promoted to

 

Specialist. His caseload increased, but consistent with the overall increase in caseload for SClF

 

attorneys. The types of cases didn't change: he had 7 S&W cases before his promotion, and 10 such

 

cases after his promotion. In addition, he worked on Pickering's cases when Pickering was on

 

vacation. After he was promoted, he continued to handle the cases he had been assigned as a Range

 

D attorney; they were not reassigned to a Range D.

 

            Vargas handled the most sensitive and complex type of cases in the office. He testified that

 

he spent 50% of his time on complex cases, and that his caseload pretty much mirrors that of

 

Pickering and Grossman. It includes S&W cases, and aspects of 132a cases. He has handled

 

sensitive cases involving the mayor of Soledad. Other sensitive cases included the Yellow Cab case,

 

Atwood, and Kirby. Most of his cases involved the Department of Corrections or other state agencies

 

where the personality of the department made the case sensitive of complex. Estrada confirmed the

 

sensitivity and complexity of the Corrections cases, which were split 50-50 between Vargas and

 

Pickering, with no differentiation in there respective roles. Vargas and Pickering both attended the

 

planning meetings and covered for each during vacations. Vargas also handled a case involving the

 

wife of an associate warden with whom he frequently dealt in other Corrections cases. Estrada often

 

commented on the complexity of certain cases as they were initially assigned.

 

            The statistical evidence confirms that the Grievants were handling the most complex types of

 

Union's Position                                                         11

 

 

cases, such as S&W and 132a cases. Their caseloads were 30% higher than the average caseload of

 

SCIF attorneys in northern California, consistent with the higher average caseloads for the Salinas

 

office in general. They were higher than the caseloads of other staff attorneys and comparable to the

 

caseloads of Specialists. At Estrada's request, both Grievants acted as lead attorneys in cases

 

assigned to more junior attorneys.

 

            Estrada's testimony supports the Grievants' claim. He admitted in substance that he asked

 

the Grievants to act as lead attorneys, and that Grossman's work didn't change after he was

 

promoted. He admitted that Specialists do not work exclusively on complex or sensitive cases, and

 

that if Range D attorneys' cases mirrored that of a Specialist, they were working out-of-class. In

 

order to be promoted to a Specialist, they must have handled complex cases, and he testified that both

 

Grievants were exceptionally qualified based on their demonstrated ability to handle these cases. He

 

indicated that Vargas might be his best trial attorney, but since he could promote only one, he

 

promoted Grossman.

 

            The evidence shows that Grievants consistently handled the most complex and difficult types

 

of cases and that they otherwise performed the work of Specialists during the grievance period.

 

Therefore, the Union argues that they should be awarded damages equal to the pay they should have

 

received for working as Specialists, with interest thereon at the rate of 10% per annum.

 

The State

 

            The State argues that under Article 15.3, the Union must establish three elements of an out­

 

of-class claim: (1) that Grievants have worked more that 50% of their time performing the duties of

 

a Specialist III, (2) that they worked more than 50% of their time as a Specialist for at least two

 

consecutive workweeks, and (3) that the Specialist duties they performed do not overlap with the

 

Employer's position                                                   12

 

 

duties of a Range D attorney. The duties appropriately assigned to Range D attorneys are

 

enumerated in the SPB specification. The fact that the words "complex type of case" appears in the

 

SCIF job definition does not establish that they performed out-of-class work. D Range is the journey

 

level for administrative litigators, and appellate litigation is handled from the San Francisco office.

 

But journey level work for a Range D attorney often overlaps with the work of a Specialist III. That

 

is the nature of a litigation office in both the public and private sectors.

 

            The observations of Mr. Rucka and Mr. Gonzalez, who saw no distinction between the

 

Grievants' cases and those of Pickering or Cannon only reflect the overlapping job duties recognized

 

in the MOU. The cogent testimony was that of Mr. Estrada and Ms. Mesa. Mesa's testimony made

 

it clear that Vargas was not recruited to lead her work, but was only asked to assist her on an as­-

 

needed basis. Neither Grievant had true expectations of exercising supervisory duties in Estrada's

 

absence. Estrada differentiated between the cases which by their very nature had the potential to

 

become complex, which he assigned to journey level Range D attorneys, and other cases which were

 

appropriate for a Specialist ab initio. But there was never enough inherently sensitive work to

 

occupy a single Specialist exclusively, and there was always overlap.

 

            The amount of time that Vargas and Pickering spent handling CDC cases and meeting to

 

discuss strategy did not amount to 50% of their time. The testimony by Mesa about Varga's

 

assistance on the Goodman makes it clear that this did not amount to 50% of his time. As another

 

arbitrator has noted, the evidentiary burden to show 50% of time spent doing out-of-class duties is

 

particularly difficult where there is no contemporaneous record of the grievant's daily work activities.

 

Anecdotal evidence is not sufficient to carry this burden.

 

            The examples of complex cases proffered by Grievants are devoid of any analysis of the hours

 

Employer's position                                         13                                         

           

devoted to higher level duties. In view of the number of cases handled by each (approximately 300),

 

it is clear that the complex and sensitive cases could not account for 50% of their work time.

 

            For these reasons, the State argues that the Union failed to carry its burden of proof, and that

 

the grievances should be denied.

 

DISCUSSION

 

            MOU section 15.3.B.l defines working "out-of-class" as containing the following elements.

 

The employee must (1) spend more than 50% of his or her time, (2) in at least two consecutive

 

weeks, (3) performing duties associated with a higher classification "that do not overlap with the

 

classification in which said employee holds an appointment." The same section provides two

 

additional clarifications: (1) that duties appropriately assigned to the employee's current classification

 

are not out-of-class, and (2) that duties appropriately assigned are based on the State Personnel

 

Board specification.

 

            This contract language creates a difficult burden of proof to establish out-of-class work,

 

especially where, as here, there is no clear demarcation between the work of the current class, Staff

 

Counsel Range D, and that of the higher level classification, Staff Counsel III (Specialist). The

 

primary distinguishing characteristic, based on the SPB job specifications, has to do with the

 

complexity or level of difficulty of the legal work performed. But the types of legal work or case

 

assignments that could be considered complex are not defined, and the Union's burden of proof is

 

to establish that the Grievants, based on the Specialist job specification, have performed "the most

 

sensitive and complex legal work of the department," that they do so more than 50% of the time, and

 

that the work performed does not overlap with work appropriately assigned to Range D attorneys.

 

            Analysis of the level of complexity is complicated by the fact that all of the attorneys in SCIF's

 

14

 

 

Salinas office perform work within a relatively narrow range of complexity, i.e. they all carry

 

caseloads consisting entirely of defending employers in administrative proceedings before the

 

Workers' Compensation Appeals Board. While some workers' compensation cases are undoubtedly

 

more complex than others, the range of legal and procedural issues is necessarily limited by the forum

 

in which they arise, and of necessity much the legal work in the office involves overlapping areas of

 

responsibilities between attorneys at different classification levels.

 

            The SPB job specification for Specialist III states:

 

            DEFINITION

Under general direction, to effective perform the most sensitive and complex legal work of the department in which employed, consistently with favorable results.

* * *

 

TYPICAL TASKS

Performs the most difficult and complex litigation, negotiation, legislative liaison, hearings, legal research, and opinion drafting; responds to difficult legal correspondence; develops strategy and tactics in the most complex disputes or litigation; and may act in a lead capacity over lower level attorney staff.

 

            The SPB Staff Counsel job specification covers Ranges A through D, noting that Range A

 

performs the least difficult legal work, and that higher ranges are assigned progressively more difficult

 

legal work. "Incumbents assigned to Range D independently perform professional legal work of

 

average difficulty." The enumerated typical tasks covers a variety of assignments, without specifying

 

a particular Range level for particular tasks.

 

            Considering only the job specifications, it must first be noted that there appears to be a gap

 

between the types of legal work assigned to Range D and Specialists. The Specialist specification

 

uses the phrases "the most sensitive and complex legal work" and "the most difficult and complex

 

litigation" to describe the job duties, while the Staff Counsel specification assigns to Range D "legal

 

work of average difficulty." Neither specification addresses work of above average difficulty which

15

does not reach the level of "the most sensitive and complex legal work" of the department. This gap

 

between the two specifications creates an implication that work of above average difficulty falls into

 

a gray area of overlapping responsibility between journey level Range D attorneys, and lead attorneys,

 

or Specialists.9

 

            The Union presented testimony of two active applicants' attorneys in the Salinas area, Michael

 

Rucka and Jim Gonzalez, in an attempt to identify categories of cases which could be labeled

 

complex. While this testimony focused on types of cases which could be considered complex, such

 

as "serious and willful" (S&W) cases, it did not provide a completely reliable means of identifying the

 

"most sensitive and complex" cases, as opposed to cases of above average difficulty. For instance,

 

both Miguel Estrada, the attorney-in-charge, and former specialist Berry Cannon, testified that not

 

all S&W cases are complex, and that any complexities arise based on the development of facts during

 

discovery (Tr. 3, 35; Tr. 2, 79). Estrada, and also Rucka, testified that other types of cases may not

 

appear complex when first assigned, but have the potential to become complex, including AOE/COE

 

cases, cases involving questions of psychiatric disability, 100% disability, or where liability must be

 

apportioned among multiple parties due to a progression of the condition or pre-existing disability.

 

            The difficulty of relying on particular categories of cases to identify the "most complex" legal

 

work in the office is highlighted by the Grievants' testimony concerning particularly complex cases

 

_________________________

 

9 The Union relies heavily on the language of the SCIF job definitions which state that Staff Counsel C/D positions must show the ability "to effectively manage the most complex type of case while maintaining a high volume case load," and that a Specialist is responsible for "handling the most complex and most difficult legal problems and issues in the department." The Union argues that the Range C/D job definition represents an admission by SCIF that Range D attorneys are assigned complex cases commensurate with "the most sensitive and complex legal work" identified in the SPB job specification for the Specialist class. It may be accepted that the SCIF job definitions show

a general lack of recognition by that department of the distinctions drawn by the SPB job specifications. However, the question presented by this grievance is whether the Union has demonstrated that the actual job duties of the Grievants satisfied the elements of section 15.3.B.l for out-of-class pay, and the language of the SCIF job definitions is only indirect evidence in support of that evidentiary burden.

 

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that they have worked on, only a few of which fell into the categories identified by Mr. Rucka. For

 

instance, Grossman noted the Sanchez case, involving an issue of collateral estoppel with Labor

 

Commissioner rulings, the Salas case, involving reconsideration of a ruling by a judge assigned to

 

many cases in the office, the Sumpter case, involving difficult medical issues and an abbreviated trial

 

preparation period, and others. Vargas identified the Goodman case, in which the applicant has hired

 

and fired attorneys and is now representing himself in pro per, the Atwood case, where the applicant

 

was an employee of a local applicant-side law firm, and the Kirby case in which a skilled defense

 

attorney represented himself as applicant, as being particularly sensitive or complex cases.10  Thus,

 

the record does not reliably establish that particular categories of cases should be considered as per

 

se the most complex types of cases. Rather, while the categories identified by Mr. Rucka may have

 

a greater than average potential to become complex, as a practical matter, complexities arise for a

 

number of reasons which mayor may not relate to the particular category of the claim.

 

            Rucka also identified Labor Code section 132a claims as being complex from an applicant's

 

perspective. However, SCIF does not and cannot insure against these claims, and at least with

 

respect to private employers it cannot defend against these claims. Therefore, the Union's argument

 

that these must be categorized as complex cases is not accepted.11  State agencies may elect to be

 

represented by SCIF for 132a claims, but Estrada testified that such claims are often used as

 

bargaining chips and that he recalls no claim in which the office has gone to trial on a 132a claim.

________________________

 

10 Vargas also identified the Yellow Cab involving a claim of "bad faith." It is not clear from the record

whether such a claim falls into any of the categories identified by Rucka.

 

11 The only specific case with a 132a claim that was discussed in testimony was the Reinert case, which was initially handled by Grossman and was settled by Vargas after Grossman's promotion. However, the Reinert case had an NG case number, meaning that it involved a private employer (see Un. Ex. 19, Tr. 2, 22), and it cannot be assumed that the presence of a 132a claim, for which SCIF attorneys did not represent the employer, made the case significantly

more complex for the assigned SCIF attorney.

 

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Union Exhibits 16 and 17 show that attorneys of all levels have been assigned to cases with 132a

 

claims, and the evidence does not establish these as among the "most complex" cases in the office.

 

            Another category of cases identified by Rucka were cases involving the Department of

 

Corrections. From his perspective, as well as Estrada's, these cases tend to be difficult not because

 

of the legal issues, but because of the uncompromising approach of the prisons. For a number of

 

years, Vargas and a Specialist, most recently Pickering, were assigned as a dedicated team to handled

 

these cases and to meet regularly with prison authorities to discuss legal strategy. Vargas and the

 

assigned Specialist have functioned as equal members of the team, and have covered for each other

 

during vacations or other absences. More recently, junior attorneys in the office have been assigned

 

Corrections cases to take some of the load off of Vargas and Pickering. Vargas' role with respect

 

to the Corrections cases demonstrates a high level of confidence in him by both Estrada and the client,

 

but cannot be concluded that handling Corrections cases automatically qualifies exclusively as

 

Specialist work; rather, it appears that this is an area of overlapping responsibility between a

 

Specialist and Vargas involving work of above average difficulty.12

 

            Both Grossman and Vargas, along with Pickering and Cannon, have consistently handled

 

several S&W cases, and since 1991, these cases have not been assigned to lower level attorneys. As

 

of December 31, 1991, when Vargas and Cannon were each responsible for four S&W cases, and

 

Grossman had one, Caron Mesa was assigned two such cases. Since then, especially after

 

Grossman's promotion, Estrada has shifted more of these cases to Specialists so that as of December

_________________________

 

12 Vargas also testified of a sensitive matter involving the wife of an associate warden with whom he

frequently met in reviewing the Corrections cases. While it does appear that there was a possible conflict which might

have warranted assigning someone other than Vargas to handle the case, this did not mean that the wife's case was

complex or sensitive in the sense that it should have been assigned to a Specialist.

 

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31, 2003, Pickering was assigned eleven, Grossman ten, and Vargas three. (See table on p. 4, supra.)

 

As noted previously, although Estrada does not consider all S&W cases necessarily to be complex,

 

this shifting of responsibility to Specialists does recognize that these cases have a higher potential to

 

become complex than most other cases.

 

            One category of case recognized by Estrada as unusually sensitive are those involving either

 

politically sensitive cases or cases involving SCIF employees. Vargas handled a case involving the

 

mayor of Soledad for a year and a half, until he became involved in the mayor's election campaign,

 

and this case presumably should have been a Specialist case.

 

            Another category of complex cases identified by Estrada were those involving aggressive

 

applicants' lawyers, such as Rucka or Bruce Baum. The record doesn't show the breakdown of

 

which SCIF lawyers handled those cases, but because of the fact that Rucka represented Grossman's

 

wife, Grossman was not assigned any cases filed by Rucka or his partner. In essence, this removed

 

Grossman from handling a significant number of cases with the potential to be complex.

 

            Estrada testified that in general he does not assign cases by rotation, but tries to keep

 

caseloads fair and balanced, considering the particular applicants' attorney, the adjuster, the employer,

 

and the facts of the case in deciding which SCIF attorney should be assigned to a case. In his

 

estimation, roughly 90% of the cases fall in the C and D range of average to above average

 

complexity, while relatively few fall into either the entry level or Specialist category. Without

 

necessarily accepting that percentage breakdown, it does seem likely that in a small law office, limited

 

to representing employers before the WCAB, there will necessarily be a large area of overlap in the

 

types of cases handled by the different levels of attorneys. This is how small law offices in both the

 

public and private sectors operate. While the more experienced attorneys tend to handle the more

 

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complex and sensitive cases, lower level and lower paid attorneys also handle difficult cases and,

 

when necessary, seek advice from more experienced attorneys on particular difficult issues.13  In large

 

part, promotions are based more on intangible factors than on analysis of caseloads. For instance,

 

Estrada testified that because of Pickering's prior experience as attorney in charge of a private

 

defense law firm, he is a very knowledgeable person to whom Estrada can take special problems to

 

satisfy a client. When Grossman and Varga competed for the open Specialist position, Estrada

 

considered them both to be qualified, but with different strengths: He regarded Grossman as a more

 

proactive attorney able to close cases efficiently, and he regarded Vargas as his best trial attorney,

 

but with a deficiency in his pleading work. Grossman was promoted, but that did not detract from

 

Estrada's confidence in Vargas' ability to handle cases of above average complexity and sensitivity.

 

            The ultimate question, based on the language of section 15.3 .B.l and the applicable SPB job

 

specifications, is whether Grossman and Vargas, during the respective grievance periods, spent more

 

than 50% of their time performing work which qualified as work which should have been assigned

 

exclusively to Specialists, rather than work which was within the overlapping responsibilities of Range

 

B attorneys and Specialists. Grossman pointed to his assessment that the nature of his caseload did

 

not change significantly after his promotion to Specialist as demonstrating that he had been working

 

out-of-class as a Specialist before his promotion. It may be accepted that Grossman's caseload did

 

not change substantially, although he was assigned several more S&W cases and was made lead

________________________

 

13 Vargas testified that he was assigned to "supervise" or "lead" junior attorneys Mesa and Serrano on certain cases. Estrada denied using that terminology. Grossman's testimony was consistent with Estrada that he was not specifically assigned to "supervise" or "lead," except that after his promotion to Specialist he was assigned as lead attorney with respect to 46 cases in which a surgery center filed liens for outpatient surgery. It is not accepted that

either Grievant was formally assigned to supervise or lead a junior lawyer; rather, the were assigned to be a resource

on difficult cases. While it may be accepted that this was informally being assigned as a lead attorney, it is unlikely

that the time spent in giving advice and reviewing pleadings was extensive.

 

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