12-3100-19145-2
STATE OF
OFFICE OF
ADMINISTRATIVE HEARINGS
FOR THE DEPARTMENT OF
VETERANS AFFAIRS
Wesley
W. Winkelman,
Petitioner,
v FINDINGS OF FACT,
CONCLUSIONS AND
City of Minneapolis, RECOMMENDATION
Respondent.
The above entitled matter came on for hearing before
Administrative Law Judge Steve M. Mihalchick on October 4, 2007, at the Office
of Administrative Hearings,
The Petitioner, Wesley W. Winkelman,
STATEMENT OF THE ISSUES
1.
The issue to
be determined in this proceeding is whether the City abolished Petitioner's Truck
Driver position in good faith within the meaning of Minn. Stat. §197.46?
The Administrative
Law Judge concludes that the Petitioner’s position was abolished in good faith.
2.
If so, is
Petitioner entitled to relief under Minn. Stat. § 197.481?
The Administrative
Law Judge concludes that he is not entitled to relief.
Based on the evidence in the hearing record, the
Administrative Law Judge makes the following:
1.
The
Petitioner, Wesley W. Winkelman, served in the U.S. Army on active duty from August
11, 1971 to August 1, 1973. He received
an honorable discharge.[1]
2.
On July 24,
2000, Petitioner began working for the City in the position of Laborer. On January 11, 2004, Petitioner was promoted
to the position of Truck Driver.[2] Truck Drivers must hold a commercial driver’s
license and the appropriate endorsement to drive particular vehicles.[3]
3.
Truck Drivers’
duties vary based on the division worked for and the season of the year. While most of the work is driving, other
duties, such as traffic control or other Laborer duties may be assigned.[4]
4.
Petitioner
works in the Fleet Services Division (Fleet Services) of the City’s Public
Works Department (PWD). PWD consists of
approximately 1,300 employees in a number of divisions. Fleet Services acts as a “motor pool”,
providing operators for heavy equipment and drivers for trucks, to the various
PWD projects going on around
5.
Steven Kotke,
Director of PWD, City Engineer, received information suggesting that need for
Fleet Services would be reduced in 2007 and 2008. Kotke asked Paul Ogren, Director of Field
Services for PWD, to assess the projected need for Drivers and Operators
(“D&O”) through the summer construction seasons for 2007 and 2008.[7] Ogren broke out the assessment into: 1)
scheduling, based on known projects, 2) preparing an assignment document to aid
in scheduling for 2007 and 2008, 3) placing data analysis into graphical
formats to assist in decision-making, 4) recommending action based on summer
operational needs, and 5) assessing possible winter operational impacts.[8]
6.
Ogren met with
staff in the City’s Engineering Department and Field Services to determine the
schedule of projects in 2007 and tentative projects in 2008.
7.
In April 2007,
Ogren presented the results of his analysis to Kotke and Heidi Hamilton, Deputy
Director of PWD. Of the then-current
total of 59 Operators and 68 Drivers, Ogren took into account the anticipated
vacation and budgetary leave of current D&Os to determine the number of
workers actually available for work. He
also used the “10% Rule” which is, based on the experience of the City’s Public
Works managers, that “10% of the Equipment work force is not available for all
combined reasons (benefits, no-shows, health reasons, disciplinary, etc.).”[9]
8.
Ogren’s
projections determined that there were consistently more D&Os available
than were needed due to the work available.[10] The average availability was determined to be
118 D&Os, while the average need was for 93 D&Os.[11] In the assessment of impact on winter
operations, Ogren spoke to Mike Kennedy, Director of Winter Operations, who
concluded that a reduction of five Drivers and 5 Operators would not result in
a reduction of service to the public in a snow emergency.[12]
9.
The seasonal
nature of work and timing of various projects renders the staffing needs of
Fleet Services both variable and difficult to forecast. To the extent possible, Kotke rescheduled
projects to smooth the demand for D&Os and ensure that the maximum number
of existing employees could be retained.
Based on the study performed, Kotke made the decision as to how many
D&O positions would be reduced. Kotke considered using unpaid leave as a
means of addressing the imbalance, but he concluded that the resulting
uncertainty of work experienced by employees was unacceptable.[13]
10.
Kotke
determined that nine operator and six driver positions would be
eliminated. In the discussions of
workforce reductions, no particular employees were mentioned and no performance
issues were raised.[14] No employee’s veteran status was raised in the
process. The least senior employees in
each classification were chosen to receive layoff notices.[15]
11.
The City
issued layoff notices on June 25, 2007, to 13 employees, including Petitioner.[16] The layoff notices included notice of the
rights of veterans to appeal the removal if it was not done in good faith.[17]
12.
In accordance
with the collective bargaining agreements governing the affected employees,
those laid off were placed in the City Job Bank. From the Job Bank, the laid off employee
could seek a different position with the City, including exercising bumping
rights. Petitioner was directly told
that he had bumping rights into the Seasonal Construction and Maintenance
Laborer positions and the effect of that bumping was explained.[18] The period in the Job Bank runs for 60 days
at which time the layoff takes place.
Petitioner’s layoff date was effective August 24, 2007.[19]
13.
On July 3,
2007, Ogren provided a memo to
• Due to
normal attrition early in the summer construction season, the total number of
Drivers and Operators is now at 66 and 59 respectively for a total of 125.
• Our workforce
reduction plan eliminated 6 Driver positions and 9 Operator positions, thus
reduces the compliment of Drivers and Operators to 62 and 50 respectively for a
total of 112.
• Since 2 of
the Drivers are no longer with the City, layoff notices were given to 13
employees; 4 Drivers and all 9 Operators.
• Historically
on any given day, 10% of the Drivers and Operators are off, on average, due to
vacation, compensation time, sick leave, FMLA, Worker’s Compensation issues,
etc. This brings the compliment to approximately 100 Drivers and Operators that
are available to work daily compared with an average need of 95.
• Our past
tracking and current projection graphs have indicated that our peak needs
(needs greater than availability) would occur during the week of June 25th
and the first week in July (which have panned out). We are projecting other
peak needs around July 11th to the 27th and again around
August 22. During this time, we
anticipate the need to supplement our fleet with outsourced resources such as
permit Drivers/Operators and/or contracting with the private sector. This need
is typically for trucking services (commonly referred to as ITOs or Independent
Trucking Organizations). This practice has been a standard procedure to meet
peak needs for many years.
• There may
also be times that non-City Drivers may be working. For example: special soil
handling, etc. Public Works strives to ensure that City Drivers and trucks are
utilized first where possible and practical.
• The Paving
Construction section did experience an unanticipated peak (average of 9 per
day) during the week of June 18th, due to projects delays. Consequently, it was
necessary to increase production in one area to keep the crews in other areas
moving forward/maintain a steady work flow.
• The City
utilized permit/contract equipment a total of 8 days between the dates of May 1st
and June 18th. On average, 3
— 4 pieces of equipment were employed each of the 8 days.
• Looking
ahead to the Fall Sweeping Operations, it is not anticipated that we will have
a peak period (i.e. need greater than availability) during that time. Currently
it is projected that much of our construction work will be done, so that there
should be enough internal resources to perform the Fall Sweep. As stated above,
weather, project availability, and changing conditions have an affect on the
accuracy of long-range projections.
• At no time
since May 1st have we had permit employees or contract equipment working
without all Public Works Drivers and Operators working.[20]
14.
Petitioner does
not believe that the City was motivated to remove him based on his status as a
veteran. Petitioner does not dispute
that the City followed seniority in selecting the employees to be laid off. [21]
15.
Petitioner
observed that the number of trucks operated by private contractors on City jobs
increased in the summer of 2007. On at
least one occasion, the Petitioner observed that the number of trucks involved
with a particular project created a significant degree of confusion.[22]
16.
On August 3,
2007, Petitioner filed a petition with the Department of Veterans Affairs
alleging that his position was not eliminated in good faith and requesting
reinstatement to his prior position as a Truck Driver.[23] On August 14, 2007, the Commissioner of
Veterans Affairs issued a Notice of Petition and Order for Hearing, setting
this matter on for hearing before an Administrative Law Judge.
17.
The City’s
current complement of D&Os is adequate for normal winter operations. During a snow event, the existing staffing,
supplemented by overtime work, is adequate.
In a snow emergency, the City expects to utilize other staff in PWD
(such as mechanics who hold commercial driver’s licenses and have received
appropriate training) to meet the need for snow removal, salting, and sanding.[24] Current employees’ normal activities are suspended
during snow emergencies to address staffing needs. No hiring of full-time employees is planned
by PWD unless the circumstances strongly indicate that the work available
justifies the hiring.[25]
Petitioner has recall rights to the
position he was laid off from for a period of three years.[26]
18.
When
Petitioner’s position was abolished, none of the tasks he had performed were
assigned to any other less senior City employee.[27]
19.
The City
determined, in good faith, that the complement of D&O positions in PWD was
larger than the work available and the work reasonably projected in the near
future. The decision to reduce positions
in the D&O classifications was made in good faith. Instituting layoffs by seniority was
consistent with the collective bargaining agreement governing Petitioner’s
employment.
Based upon
the foregoing Findings of Fact, the Administrative Law Judge makes the
following:
CONCLUSIONS
1. The
Administrative Law Judge and the Commissioner of Veterans Affairs have
jurisdiction in this matter pursuant to Minn. Stat. §§ 14.50 and 197.481.
2. The parties
received proper notice of the issues in this proceeding and this matter is,
therefore, properly before the Administrative Law Judge.
3. The Department
of Veterans Affairs has complied with all relevant substantive and procedural
requirements of law.
4. Petitioner is
an honorably discharged veteran within the meaning of Minn. Stat. §§197.46 and
197.447 of the Veterans Preference Act.
5. Minn. Stat.
§197.46 prohibits the removal of a veteran from public employment except for
incompetency or misconduct shown after a hearing, upon due notice and upon
stated charges in writing.
6. Public
employers may abolish positions held by veterans notwithstanding the Veterans
Preference Act if the abolition of the position is in good faith.[28]
7. The burden of
proof is upon Petitioner to prove by a preponderance of the evidence that he
was removed from public employment without a hearing. Once a removal is established, the burden of
proof is upon the Employer to prove by a preponderance of the evidence that the
veteran’s position was abolished in good faith.[29]
8. Petitioner was
removed from his Truck Driver position with the City within the meaning of
Minn. Stat. §197.46.
9. Petitioner’s
removal was not for reasons of incompetency or misconduct as those terms are
defined by Minn. Stat. §197.46.
10. Petitioner’s
removal from his Truck Driver position was the result of the City’s good faith
decision to abolish his position.
11. Petitioner’s
veterans preference rights under Minn. Stat. § 197.46 were not violated by the
Respondent because Petitioner’s removal was the result of the City’s good faith
decision to conform staffing in the City’s PWD with the reasonably anticipated
workload.
12. The City has
provided Petitioner with the procedural and substantive rights to which he is
entitled.
Based upon the foregoing Conclusions, the Administrative Law
Judge makes the following:
RECOMMENDATION
IT IS RESPECTFULLY RECOMMENDED that the Commissioner of
Veterans Affairs order that the Petition of Wesley W. Winkelman be DENIED.
Dated this 27th day of November, 2007.
_/s/ Steve M. Mihalchick _
STEVE M. MIHALCHICK
Administrative Law Judge
Reported: Digitally
Recorded
No
Transcript Prepared
This report is a recommendation, not a final decision. The Commissioner of Veterans Affairs will make
the final decision after a review of the record. The Commissioner may adopt, reject or modify
these Findings of Fact, Conclusions, and Recommendations. The parties have 10 calendar days after
receiving this report to file Exceptions to the report. At the end of the exceptions period, the
record will close. The Commissioner then
has 10 working days to issue his final decision. Parties should contact Clark Dyrud,
Commissioner of Veterans Affairs,
Under Minn. Stat. § 14.62, subd. 1, the agency is required
to serve its final decision upon each party and the Administrative Law Judge by
first class mail or as otherwise provided by law.
MEMORANDUM
This proceeding arises out of the Veterans’ Preference Act
(VPA or Act), Minn. Stat. § 197.46.
Petitioner alleges that the City violated the Act, as a matter of law
and fact, when Petition was laid off from his position, resulting in his terminating
his employment with the City. Petitioner
maintains that the layoff constitutes a removal in bad faith, thereby entitled
him to reinstatement and compensatory damages.
Minn. Stat. § 197.46 governs a
veteran’s removal from employment with a city or other public employer. With respect to removals, it states, in part,
as follows:
No person holding a position by appointment or employment in
the several . . . cities . . . in the state, who is a veteran separated from
the military service under honorable conditions, shall be removed from such
position or employment except for incompetency or misconduct shown after a
hearing, upon due notice, upon stated charges, in writing.
The court rulings have held
consistently that the statute does not apply to the good faith abolition of a
position held by a veteran. The
Minnesota Supreme Court discussed this exception to the statute as follows:
The purpose of this section [the Veterans’ Preference Act]
is to take away from the appointing officials the arbitrary power, ordinarily
possessed, to remove such appointees at pleasure; and to restrict their power
of removal to the making of removals for cause.
But it is well settled that statutes forbidding municipal officials from
removing appointees except for cause are not intended to take away the power
given such officials over the administrative and business affairs of the
municipality, and do not prevent them from terminating the employment of an
appointee by abolishing the office or position which he held, if the action
abolishing it be taken in good faith for some legitimate purpose, and is not a
mere subterfuge to oust him from his position.
The municipal authorities may abolish the position held by an honorably
discharged soldier and thereby terminate his employment, notwithstanding the
so-called veterans’ preference act.[30]
In a later decision, the Minnesota
Supreme Court elaborated on the good faith exception to the Act stating:
If the City merely assigned Young’s duties to nonveteran
employees less senior than he, his position was not abolished in good faith,
and he is entitled to reinstatement with back pay. The Veterans’ Preference Act is applicable to
cases in which public employers reassign duties in times of revenue shortfalls
and budget cuts. No exception in the Act
exists for such situations. Thus,
veterans have a preference over nonveteran employees less senior than they to
continue to perform duties for which they are qualified if the public employer
continues to need such duties performed. * * *[31]
Petitioner argues that his removal was
in bad faith. He maintains that the truck
driving function of the Fleet Services Division of City’s PWD continues to be
performed, now by private contractors.
In Young, the Minnesota
Supreme Court said:
[W]e have consistently held that a veteran is entitled to a
writ of mandamus ordering the public employer to reinstate the veteran to his
or her former position with back pay when it is established, after a hearing,
that the public employer, under the pretext of abolishing a veteran’s position,
actually continued it under some other name or reassigned the veteran’s duties
to some other employee.[32]
In Young,
the veteran’s duties were assigned to employees less senior than Young. Young was terminated to further a policy
decision to replace employees being paid the highest salaries with employees
being paid less. Rather than abolishing
the position, the employer removed the veteran (Young) from the position.
In this case, the City has not assigned Petitioner’s duties
to a less senior employee. The City has
assessed the work to be performed, on a year-round basis, and determined that
the level of work supports a smaller complement of D&Os. On the limited occasions when the workload
exceeds the capacity of the reduced complement, the City utilizes private
contractors. No employees of the City are
assigned to perform the duties that the Petitioner had performed.
Petitioner maintains that bad faith
can be inferred from the volume of work that was experienced over the summer of
2007. The City based its decision to conduct
layoffs on a forecast of work to be performed in both 2007 and 2008. The City demonstrated that there was a
sufficient lack of work to be performed by D&Os to support a reduction in
the workforce. There is no evidence that
the City was motivated by any other reason than efficiency in conducting the
layoffs. There is no evidence that the
City attempted to oust the Petitioner from his position for improper reasons or
to circumvent the hearing requirements of the Veterans Preference Act.
In most cases involving the bad faith
abolishment of a veteran’s position, “it generally has appeared that there was
prompt re-creation of the office or position under a different name or
assignment of the work thereof to another department, followed by appointment of
a new appointee to perform the work formerly done by the incumbent of the
office or position claimed to have been abolished.”[33] Petitioner’s position has not been re-created
under a different name. The duties being
performed by private contracts are on an “as needed” basis. This is substantially different from the
year-round nature of Petitioner’s position with the City. The contract work with the City does not constitute
reassignment within the meaning of Young
or Thomas.
The City maintains that its action is not a removal for
purposes of the Veterans Preference Act since the entire Truck Driver
classification was not eliminated and Petitioner may be recalled by the City
over the next three years. The City maintains
that a “removal” only occurs where the employer’s action makes it unlikely or
improbable that the veteran will return to the job.[34] The City’s argument is not well taken. In
The City notes that the elimination of
an entire city police department and contracting with the county for law
enforcement services was upheld as a good faith abolition of position.[36]
In
There is no evidence that the City will be experiencing
higher costs due to the layoffs through private contracting. The methodology used by the City in assessing
its need for D&Os is reasonable on its face. There is no evidence that the process was
manipulated to target Petitioner’s position.
The City's action was taken in good faith and not to oust a veteran
without providing the protections of the Act.
The City's motives in laying off employees, including the
Petitioner, from the PWD was to match the size of the workforce with the work
available. There is no evidence that the
City was acting in bad faith or abolished these positions merely to oust
Petitioner from his position. The
Petitioner's position of Truck Driver was abolished in good faith within the
meaning of the Veteran's Preference Act.
Therefore, Petitioner's request that the Commissioner reinstate him to
his former position should be denied.
S.M.M.
[1] Exhibit 14.
[2] Exhibit 5, at 2; Testimony of Petitioner.
[3] Testimony of Paul Ogren.
[4] Testimony of Petitioner.
[5]
Testimony
of Steven Kotke.
[6]
Testimony
of Ogren. While operators can drive
trucks, drivers cannot operate heavy equipment, due to limitations in training
and certification.
[7]
Ogren is
now Strategic Operations Coordinator for PWD, a reduction in position due to
the same staff reorganization affecting Petitioner. Testimony of Ogren.
[8] Exhibit 3, at 1.
[9]
[10] Exhibit 1; Testimony of Ogren.
[11] Exhibit 3, at 13-18.
[12] Exhibit 3, at 6; Testimony of Ogren.
[13]
Testimony
of Kotke.
[14]
Testimony
of Kotke; Testimony of Ogren.
[15] Testimony of Brenda Shepard.
[16]
For the
remaining two positions, one employee took a different position and the other
employee retired. Testimony of Ogren.
[17] Exhibit 5.
[18] Testimony of Shepard.
[19]
Exhibit
4, at 19; Testimony of Ogren; Testimony of Shepard.
[20] Exhibit 2.
[21] Testimony of Petitioner.
[22] Testimony of Petitioner.
[23] Exhibit 14, Petition at 1-2.
[24] Testimony of Ogren.
[25] Testimony of Kotke.
[26] Testimony of Shepard.
[27] There was a tie in seniority in the layoff process, which was resolved by random selection, in accordance with the collective bargaining agreements terms. Testimony of Shepard.
[28]
Young v. City
of
[29]
Minn. R.
1400.7300, subp. 5 (2003); Holmes v. Board of Commissioners of
[30]
State ex rel. Boyd v. Matson, 155
[31]
Young v. City of
[32] Young, 386 N.W.2d 732, 738.
[33]
State ex rel. Niemi v. Thomas, 223
[34]
City
Brief, at 5 (citing Anderson v. City of
Minneapolis, 503 N.W.2d 780 (
[35]
[36] City Brief, at 11 (citing Taylor v. City of New London, 536 N.W.2d 901 (Minn. App. 1995)).
[37]
[38]
Petitioner’s
Brief, at 1.