Recently, Ceres POA filed a grievance with the city of Ceres after the Finance Department refused to pay officers who took approximately six hours for a promotional exam while they were on-duty.  The officers pointed to uncontested twenty year old language in their Memorandum of Understanding which states:
Section 7.5   Leave for Department Promotional Exams
Employees participating in department promotional exams will be considered off duty and on their own time for all department promotional examinations.  Employees who are scheduled to a shift at the time of the exam shall be given release time to attend the examination.  Overtime shall not be paid for employees taking department promotional exams.
The Finance Department interpreted this language to mean on-duty officers would be released from their duties to participate in the department’s promotional exam, but did not require the City to compensate the officers for their time spent taking the examination.  This interpretation was based upon the first sentence of the paragraph, “Employees participating in department promotional exams will be considered off duty and on their own time for all department promotional examinations.”
Moreover, the Finance Department claimed the City had an established past practice to reject such claims. The Finance Department presented evidence it had rejected payroll claims from other on-duty officers when they took the last promotional exam in 2008.
The term “release time” does not have a legal definition in and of itself.  The term is referred to in the Meyers-Milias-Brown Act  (“MMB”)wherein employee representatives of recognized employee organizations are allowed reasonable time off without loss of compensation or other benefits when formally meeting and conferring with City representatives.  However, this is limited to meeting and conferring, not taking a promotional examination.
Paul Konsdorf, Labor Representative of Goyette & Associates, filed a timely grievance with the City of Ceres.  The grievance was heard by Glenn R. Gebhardt, P.E. on January 18, 2011.
Mr. Konsdorf not only presented how “release time” is used in MMB, but numerous state laws which reference release time as paid time.  He successfully demonstrated that the term was synonymous with paid time throughout the state and various agencies. 
The hearing officer focused upon the City’s past practice.  Mr. Konsdorf presented payroll records for the last three promotional exams.  On June 14, 2007 and August 26, 2007, all on-duty officers were paid for the time they spent taking their promotional exams.  The third exam was given on June 26, 2008, when the Finance Department rejected the on-duty officers’ time cards.  Mr. Konsdorf vehemently argued that if the POA had been made aware of the change in practice then, a grievance would have been filed in a timely manner in 2008, but there had been no notification made nor received.  Mr. Konsdorf presented evidence to show:
If a custom has attained the stature of a past practice, even if there is written language to the contrary in the contract, management cannot simply discontinue the past practice.  To alter or discontinue a past practice, management must clearly announce to the union its intention to change the practice, and explain how it will be changed.  In some circumstances, the union must be offered an opportunity to bargain over the change.
Hearing Officer Gephardt affirmed the CPOA grievance awarding the grieved officers their due compensation.
Mr. Konsdorf recommends that anytime the term “release time” is used, one should automatically insert “paid release time”.