OAH 8-3100-20638-2
OAH 8-3100-20637-2
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE DEPARTMENT OF VETERANS AFFAIRS
|
Robert J. Imdieke, Jr., v. Minneapolis Public Schools and James Ziebell, v. Minneapolis Public Schools |
FINDINGS
OF FACT, CONCLUSIONS
AND RECOMMENDATION |
This matter came before Administrative Law
Judge Eric L. Lipman for an evidentiary hearing on December 15,
2009. Following the receipt of post-hearing submissions from the parties
on January 8 and 15, 2010, the hearing record closed.
JaPaul Harris,
Senior Employee Relations Associate, appeared
on behalf of the District. Gayle Gaumer, Wilson Law Firm, appeared on
behalf of Petitioners Robert J. Imdieke, Jr. and James Ziebell.
Based upon all of the proceedings herein, the Administrative Law Judge makes the following:
FINDINGS OF FACT
1.
Petitioner
Robert J. Imdieke, Jr. served in the United States Air Force on active duty
from October 17, 1974 to September 5, 1978.
He was honorably discharged from the U.S. Air Force on September 5, 1978.[1]
2.
Petitioner
James Ziebell served in the United States Air Force on active duty from December
9, 1966 to December 22, 1967. He was
honorably discharged from the U.S. Air Force on December 22, 1967.[2]
3.
Petitioners
were employed by the District in the classification of “electrician” on June
21, 2004. Until their separation from
service on June 1, 2009, both men performed duties as electricians for the District’s
Facilities Department.[3]
4.
Both
men were members of the International Brotherhood of Electrical Workers, Local
292, and were hired by the District through the
5.
Over
the past 10 years the School District has suffered a 30 percent reduction in
student enrollment – nearly two-thirds of which has occurred during the most
recent five years.[5]
6.
Since
Petitioners were hired in 2004, the
7.
For
Fiscal Year, 2009—2010, the District projected a $28 million dollar budget
shortfall. As part of its plan to reduce
the projected deficit, the District ordered a $10 million dollar reduction in
operational expenses. The District directed all departments, including the Facilities
Department, to reduce their operating budgets. Specifically, the Facilities
Department was tasked with cutting its operating budget from $16.3 million dollars
to $12 million dollars.[7]
8.
To meet
this directive, the Facilities Department eliminated a total of 29 positions,
26 of which were occasioned by layoff. In
particular, the electrician workforce was reduced by nine employees.[8]
9.
Under
its layoff plan, the District retained its most senior employees in each work
classification effected by layoffs, reducing by layoff those workers with less
seniority. Additionally, both veterans
and non-veterans were among those persons laid off and among the more senior
electricians that were retained.[9]
10.
There
is no evidence that the past performance of any employee played a role in the
decision-making as to whom to separate from service through the lay off.[10]
11.
On June
1, 2009, the District hand-delivered to Petitioners their separation notices. The notice provided in part:
If you are an honorably discharged veteran,
you may have certain rights relating to your layoff under the Minnesota
Veterans’ Preference Act, Minn. Stat. 197.46 (“Act”). Pursuant to the Act, you
have the right to petition the District Court for a writ of mandamus, requiring
reinstatement and back pay, if you think that your layoff was not in good
faith. Alternatively, you have the right to petition the Commissioner of
Veterans’ Affairs pursuant to Minn. Stat. § 197.48 1 for a hearing to determine
whether your layoff was in good faith. If you choose to take either of these
actions, you must do so within sixty (60) days of receipt of this notice.
Failure to timely request a hearing within this sixty (60) day period shall
constitute a waiver of your rights to contest your layoff under the Veteran’
Preference Act. Such failure shall also waive all other available legal
remedies for reinstatement.
The District continued to pay Petitioners
their regular salaries for a period of 60 days following the delivery of the
separation notices.[11]
12.
When
deciding whether and how to complete specific maintenance projects, among the
matters that mangers of the District’s Facilities Department consider are: (a)
the sources of funding, if any, that are available to complete the project; (b)
the urgency, if any, of completing the proposed work; (c) the direct and
indirect costs associated with adding a permanent employee to the District’s
payroll; and (d) the direct and indirect costs associated with contracting with
an outside vendor for the work – including the time lags that follow from the
contracting process.[12]
13.
From
the District’s perspective, hiring an electrician who has never worked for the
District before, but who has been enrolled on the Local 292 hiring hall list of
unemployed electricians longer than Messrs. Imdieke or Ziebell, involves more
indirect costs than recalling either Mr. Imdieke or Mr. Ziebell to work. As the District reasons, credentialing, orienting
and supervising an employee who has never worked for the District before requires
more resources than reintegrating a former employee.[13]
14.
Local
292 would not grant the
15.
As the
District found sources of funding for specific pipefitting and painting
projects, it recalled one painter and seven pipefitters who were laid off earlier
in 2009. While this appeal was underway,
however, the pipefitters who were briefly recalled to work were laid off a
second time.[15]
16.
Since
June 1, 2009, the District has not employed an electrician with less seniority
than either Mr. Imdieke or Mr. Ziebell.[16]
17.
The District has executed two contracts under
the State of
18. Rather than incur the expense of adding full-time employees to the Facilities Department, or increasing the amount spent under either of the existing Master Professional / Technical Services Contracts, the District prefers to defer electrical maintenance work that it regards as a lower priority.[18]
19.
Petitioners
timely appealed their respective discharges from employment with the Department
of Veterans Affairs.[19]
20.
Following
the Department’s issuance of Notices of Petition and Orders for Hearing in the
respective cases, the matters were combined into a consolidated proceeding.[20]
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 in this proceeding and this matter is,
therefore, properly before the Administrative Law Judge.
3.
Petitioners
are honorably discharged veterans within the meaning of Minn. Stat. §§197.46
and 197.447 of the Veterans Preference Act.
4.
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.
5.
Public
employers may abolish positions held by veterans notwithstanding the Veterans
Preference Act, if the abolition is in good faith.[21]
6.
The
burden of proof is upon Petitioners to prove by a preponderance of the evidence
that either or both were 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.[22]
7.
Petitioners
were removed from their positions as electricians with the facilities
department of the
8.
Petitioners’
removal were not for reasons of incompetency or misconduct as those terms are
defined by Minn. Stat. §197.46.
9.
Petitioners’
removal from their positions as electricians with the Facilities Department was
the result of the District’s good faith decision to affect a reduction in force.
10.
Petitioner’s
veterans preference rights under Minn. Stat. § 197.46 were not violated by the District
because Petitioners’ removal followed from the District’s good faith decision
to match workload with available revenues.
11.
The District
provided Petitioners with the procedural and substantive rights to which they
were entitled.
Based upon the foregoing Conclusions, the
Administrative Law Judge makes the following:
RECOMMENDATION
It is respectfully recommended that the Commissioner of Veterans Affairs DENY the petitions of Robert J. Imdieke, Jr. and James Ziebell.
Dated: February 9, 2010
_s/Eric L. Lipman_______________________
ERIC L. LIPMAN
Administrative Law Judge
NOTICE
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 and
may adopt, reject or modify these Findings of Fact, Conclusions, and
Recommendation. Under Minn. Stat. §
14.61, the Commissioner shall not make a final decision until this Report has
been made available to the parties for at least ten days. The parties may file exceptions to this
Report and the Commissioner must consider the exceptions in making a final
decision. Parties should contact
the Commissioner of Veterans Affairs,
If the Commissioner fails to issue a final
decision within 90 days of the close of the record, this report will constitute
the final agency decision under Minn. Stat. § 14.62, subd. 2a. The record
closes upon the filing of exceptions to the report and the presentation of
argument to the Commissioner, or upon the expiration of the deadline for doing
so. The Commissioner must notify the
parties and the Administrative Law Judge of the date on which the record
closes.
Pursuant to Minn. Stat. § 14.62, subd. 1,
the Commissioner is required to serve its final decision upon each party and
the Administrative Law Judge by first class mail.
MEMORANDUM
At
issue in this case are the measures that a local unit of government may take,
under the Veterans Preference Act, in response to lower revenues. Specifically, may the District: (a) lay off employees who are covered by the protections
of the Act; (b) perform some, but not all, of the types of work performed by
the veterans who were laid off; and (c) use a mix of more senior employees and
outside contractors to accomplish the reduced duties?
The
case of Winkelman v. City of Minneapolis,
suggests that the
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.” 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 v. City of Duluth,]
or [State ex rel. Niemi v. Thomas].
….
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 [Drivers and Operators]
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.[23]
Like Winkelman,
in this instance, the
The
government is entitled to make good-faith reductions in force, discharging
employees in reverse-order of seniority, including honorably-discharged
veterans, without violating the Veterans Preference Act.[25] The Commissioner should deny the
petitions of Robert J. Imdieke, Jr. and James Ziebell.
E.
L. L.
[1] Exhibit A; Testimony of Robert Imdieke.
[2] Ex. B; Testimony of James Ziebell.
[3] Exs. C, D and E.
[4] Test. of R. Imdieke.
[5] Testimony of Grant Lindberg; Ex. 4 at 6.
[6] Test. of G. Lindberg.
[7] Exs. 10 and 11.
[8] Ex. 12.
[9]
[10] Compare, Test. of G. Lindberg.
[11] Exs. 17 - 20.
[12]
[13]
[14] Id; Test. of J. Ziebell.
[15]
[16] Test. of G. Lindberg.
[17]
[18]
[19] See, Notice of Petition and Order for Hearing, OAH Docket Nos. 8-3100-20637-2 and 8-3100-20638-2 (June 30, 2009).
[20] Second Pre-Hearing Order, OAH Docket Nos. 8-3100-20637-2 and 8-3100-20638-2 (August 17, 2009).
[21] See, Young v. City of
[22] See, Minn. R. 1400.7300, subp. 5
(2007); compare generally, Holmes v.
Board of Commissioners of
[23] Winkelman v. City of Minneapolis, OAH Docket No. 12-3100-19145-2 (2007) (http://www.oah.state.mn.us/aljBase/310019145%20rt.htm) recommendation adopted by the Commissioner (2008) (http://www.oah.state.mn.us/aljBase/final/310019145.pdf).
[24] Compare, Conclusion
Number 9, supra with
Tamminen v. City of Eveleth, 249 N.W. 184, 186 (
[25] See, Evens v. City of