Las Vegas Metro. Police Dep't. v. Jenkins ( 2015 )

 In February 2011, after investigating an internal complaint
against him, LVMPD issued Jenkins a written reprimand for violating
LVMPD's harassment and discrimination policy. The reprimand, which
Jenkins signed, did not mention a transfer to a new assignment.
Nonetheless, LVN1PD transferred Jenkins on the same day he signed the
reprimand. The transfer notice, which was labeled as an lajdministrative
[t]ransfer," stated the following:
As a result of it being determined that you
engaged in inappropriate verbal communications
with subordinates of a nature that violates the
Department's harassment and discrimination
policies, I am recommending that you be
transferred out of your current assignment. My
recommendation is to transfer you to a patrol
squad as it provides a more structured
environment and closer supervision by your
Lieutenant.
Due to this transfer, Jenkins lost his position as a property crimes
supervisor and certain benefits, including his favorable work schedule and
assignment differential pay (ADP) of 8% of his base salary.
Before LVMPD filed the written reprimand against Jenkins, a
voluntary body-for-body transfer was discussed that would have swapped
Jenkins for his counterpart in another area. Jenkins, his counterpart, and
their supervising Lieutenants and Captains agreed to this transfer.
However, the transfer was never effectuated as originally agreed.
On March 10, 2011, Jenkins filed a formal grievance regarding
his transfer under Articles 7 (Management Rights) and 12 (Grievance
Procedures for Disciplinary Action) of the Collective Bargaining
Agreement (CBA) between LVMPD and the Police Managers and
Supervisors Association. LVNIPD refused to accept the grievance because
it was not filed under Article 23 (Transfers).
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Jenkins and the Las Vegas Police Managers and Supervisors
Association (PMSA) filed a complaint with the Board, alleging that
Jenkins was denied due process and that LVMPD breached the CBA and
the covenant of good faith and fair dealing by implementing a disciplinary
transfer under the guise of an administrative transfer. The complaint also
requested that the Board restrain LVMPD from using administrative
transfers for disciplinary purposes against PMSA members.
As a result, the Board held a hearing and found that the
complaint had merit. In its decision, the Board found that although
Jenkins' transfer was purportedly administrative, in reality it was
disciplinary because it was intended to punish Jenkins. The Board also
found that LVMPD "has unilaterally adopted the practice of using
administrative transfers . . . to discipline employees . . . to circumvent the
bargained-for grievance process." Thus, the Board concluded that Jenkins'
transfer was a disciplinary measure subject to mandatory bargaining in
good faith. The Board then determined that LVMPD's refusal to hear
Jenkins' grievance and its use of an administrative transfer as a
disciplinary method each constituted a refusal to bargain in good faith in
violation of NRS 288.270(1)(a), (e). Finally, the Board concluded that
LVMPD's practice of using administrative transfers to discipline
employees violates NRS 288.270(1)(a), (e).
Consequently, the Board ordered LVMPD to reinstate Jenkins
to property crimes supervisor at the earliest opportunity with ADP of 8%,
provide Jenkins with the ADP of 8% that he lost since his transfer, post a
notice stating that LVMPD will not use administrative transfers as a
means of imposing discipline upon an employee, and pay attorney fees and
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costs. The "award" of attorney fees and costs did not include a specific
amount because the Board had not received the requisite information.
On February 25, 2013, LVMPD filed a petition for judicial
review with the District Court of Clark County, Nevada. On March 26,
2013, the Board entered a separate order specifying the amount of
attorney fees and costs to which Jenkins and the PMSA were entitled. In
response, on April 9, 2013, LVMPD amended its petition for judicial
review to expressly challenge that award. The district court denied
LVMPD's petition, and this appeal follows.
DISCUSSION
"When reviewing a district court's denial of a petition for
judicial review of an agency decision, this court engages in the same
analysis as the district court." Taylor v. Dep't of Health and Human
Servs., 129 Nev., Adv. Op. 99, 314 P.3d 949, 951 (2013) (internal quotation
omitted). Accordingly, we apply the standards listed in NRS 233B.135(3)
to determine whether the administrative agency's decision was clearly
erroneous or constituted an abuse of discretion. See id. In making this
determination, "this court defer[s] to an agency's interpretation of its
governing statutes or regulations if the interpretation is within the
language of the statute." Id. (alteration in original) (internal quotation
omitted). Other questions of law we review de novo. See Bisch v. Las
Vegas Metro. Police Dep't, 129 Nev., Adv. Op. 36, 302 P.3d 1108, 1112
(2013). Finally, we will uphold findings of fact when supported by
substantial evidence, or "evidence that a reasonable person would accept
as adequate to support [the] conclusion." Id. "[W]here conflicting evidence
exists, all favorable inferences must be drawn towards the prevailing
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party." Yamaha Motor Co. v. Arnoult, 114 Nev. 233, 238, 955 P.2d 661,
664 (1998).
Jurisdiction of the Board to hear the complaint
LVMPD initially contends that the Board mischaracterized
Jenkins' transfer as disciplinary. According to LVMPD, because Jenkins'
transfer was actually administrative and he failed to exhaust his
contractual remedies under Article 23 of the CBA, either the Board lacked
jurisdiction to entertain the complaint or there was no justiciable
controversy.
As an initial matter, whether an employee transfer is
disciplinary or administrative in nature is a question of fact. See
Muhammad v. New York City Transit Auth., 52 F. Supp. 3d 468, 482
(E.D.N.Y. 2014) (indicating that whether a transfer was disciplinary in
nature in a Title VII religious discrimination action was a question of
fact); Black v. City & Cnty. of Honolulu, 112 F. Supp. 2d 1041, 1058 (D.
Haw. 2000) (stating that "whether the disciplinary action was legitimate"
is a question of fact for a conspiracy claim). In determining whether the
transfer is disciplinary in nature, we note that "discipline" means to
punish. City of Reno v. Reno Police Protective Ass'n, 118 Nev. 889, 900, 59
P.3d 1212, 1220 (2002). Here, we conclude the Board's finding that the
transfer was disciplinary is supported by the transfer notice, Captain
Greenway's testimony, and the reduction in pay and benefits associated
with Jenkins' transfer. Because this evidence would allow a reasonable
person to accept the Board's finding that Jenkins' transfer was
disciplinary, the finding is supported by substantial evidence. We
therefore will not disturb this finding on appeal.
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Further, this court reviews challenges to subject matter
jurisdiction de novo. See Deja Vu Showgirls v. State, Dep't of Taxation,
130 Nev., Adv. Op. 73, 334 P.3d 392, 397 (2014). NRS 288.110(2) states
that "[t]he Board may hear and determine any complaint arising out of the
interpretation of, or performance under, the provisions of [NRS Chapter
288] by any local government employer, local government employee or
employee organization." NRS 288.280 also provides that "[a]ny
controversy concerning prohibited practices may be submitted to the
Board." Construing these provisions in City of Reno, we "recognized that
the EMRB has exclusive jurisdiction over unfair labor practice issues,"
including "the prohibited practice of unilaterally changing a subject of
mandatory bargaining." 118 Nev. at 895, 59 P.3d at 1217. Thus, we must
determine whether the complaint alleged that LVMPD committed a
violation under NRS Chapter 288. See Rose quist v. Intl Ass'n of
Firefighters Local, 118 Nev. 444, 448-49, 49 P.3d 651, 653-54 (2002),
overruled on other grounds by Allstate Ins. Co. u. Thorpe, 123 Nev. 565,
170 P.3d 989 (2007).
NRS Chapter 288 requires a local government employer to
negotiate in good faith regarding the mandatory subjects of bargaining.
NRS 288.150(1). Mandatory subjects include, among others, "[d]ischarge
and disciplinary procedures" and "[g]rievance and arbitration procedures
for resolution of disputes relating to interpretation or application of
collective bargaining agreements." NRS 288.150(2)(i), (o); see Intl Ass'n of
Firefighters, Local #1285 u. City of Las Vegas, 104 Nev. 615, 620, 764 P.2d
478, 481 (1988) (holding that an employer's action of suspending an
employee because of his larceny charge was a disciplinary action subject
for grievance and arbitration). Subjects "reserved to the local government
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employer without negotiation include . . . the right to hire, direct, assign or
transfer an employee, but exclud[e] the right to assign or transfer an
employee as a form of discipline." NRS 288.150(3), (3)(a). NRS Chapter
288 also prohibits a local government employer from "Nnterfer[ing],
restrain[ing] or coerc[ing] any employee in the exercise of any right
guaranteed under [NRS Chapter 2881" and from "Hefus[ing] to bargain
collectively in good faith with the exclusive representative as required in
NRS 288.150." NRS 288.270(1)(a), (e).
The complaint included claims for breach of the CBA and the
covenant of good faith and fair dealing Each of these claims is based on
LVMPD's use of the purported administrative transfer as a pretense for
disciplining Jenkins and LVMPD's subsequent refusal to accept Jenkins'
filed grievance. These claims and their bases arise out of the
interpretation and performance of provisions under NRS Chapter 288,
including LVMPD's obligation to negotiate in good faith for disciplinary
and grievance procedure changes and to refrain from restraining Jenkins
in his attempt to exercise his right to grieve the disciplinary transfer
under the CBA. Each of the claims amounts to an allegation of an unfair
labor practice in violation of the CBA and NRS Chapter 288. Accordingly,
we conclude that the Board had jurisdiction to entertain the complaint.
The Board's conclusion regarding LVMPD's unilateral adoption of the
practice of using administrative transfers
LVMPD argues that the Board's determination that LVMPD
had been using administrative transfers in violation of NRS 288.270
improperly deprived LVMPD of its statutory and contractual rights to
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conduct administrative transfers.' LVMPD further asserts that Article 23
of the CBA permits LVMPD to use an administrative transfer "[w]henever
performance or conduct issues arise," and NRS 288.150(3), (5) guarantees
that permission.
LVMPD's primary argument related to its contractual rights
to exercise an administrative transfer hinges on its incorrect assertion
that Jenkins' transfer was non-disciplinary. Because Jenkins' transfer
was disciplinary, this basis for LVMPD's argument fails.
Whether Article 23 of the CBA would apply because a transfer
was based on "conduct," regardless of the disciplinary nature of the
transfer, is a question of contractual interpretation. As a question of law
outside of the Board's governing statute and regulations, this court
reviews interpretation of the CBA de novo. See Galardi v. Naples Polaris,
LLC, 129 Nev., Adv. Op. 33, 301 P.3d 364, 366 (2013) (stating that
appellate review of contractual interpretation is de novo). Despite
competing arguments for construing the CBA, neither party claims that
any provision in the agreement is ambiguous. Thus, the issue becomes
whether Article 12 or 23 governs the CBA when an employee is
transferred for disciplinary reasons.
ILVMPD also appears to contend that the Board lacked substantial
evidence to support its finding that LVMPD regularly engaged in the
practice of using administrative transfers to discipline employees to avoid
the grievance process because the witness statements the Board relied on
were neither evidentiary nor judicial admissions and therefore insufficient
to support the finding. We disagree and conclude that the Board's finding
that LVMPD "has unilaterally adopted the practice of using
administrative transfers . . . to discipline employees . . . to circumvent the
bargained-for grievance process" is supported by substantial evidence.
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Based on the language found in both Articles 12 and 23, when
LVMPD uses a transfer for disciplinary purposes—with the intention of
punishing the transferee—Article 12 applies and requires LVMPD to
allow the grievance process. See City of Reno, 118 Nev. at 900, 59 P.3d at
1220; see also NRS 289.010(4) (defining punitive action as 'any action
which may lead to dismissal, demotion, suspension, reduction in salary,
written reprimand or transfer of a peace officer for purposes of
punishment"). Thus, using administrative transfers for disciplinary
purposes would constitute a unilateral change of provisions required to be
bargained-for under NRS Chapter 288. Accordingly, we conclude the
Board's decision that LVMPD's widespread use of administrative transfers
for disciplinary purposes without engaging in the bargaining process
violated NRS 288.270 was correct.
We also reject LVMPD's arguments that the Board's decision
violates its statutory rights under NRS Chapter 288. First, LVMPD relies
on its incorrect assertion that the transfers at issue are non-disciplinary,
arguing that rights involving such transfers are therefore not required to
be bargained-for. When speaking of matters reserved for local government
employers, NRS 288.150(3)(a) specifically excludes "the right to assign or
transfer an employee as a form of discipline." Accordingly, because the
Board found that LVMPD was wrongfully using administrative transfers
for disciplinary purposes, this argument fails.
Next, LVMPD implies that NRS 288.150(5) empowered it to
use an administrative transfer for disciplinary purposes. This court has
never construed this provision to empower a local government employer to
unilaterally override a mandatorily bargained-for disciplinary procedure
contained in a collective bargaining agreement, even when the statutory
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provision is expressly included in that agreement. See Int? Ass'n of
Firefighters, Local # 1285 v. City of Las Vegas, 112 Nev. 1319, 1323-25,
929 P.2d 954, 957 (1996) (concluding that a firefighter trainee was entitled
to arbitration by the article in the applicable collective bargaining
agreement governing grievances and disputes, despite the verbatim
language of NRS 288.150(5) included in the agreement).
Here, Article 12 of the CBA unequivocally provides the
procedures for disciplinary disputes, which includes an employee's right to
file a grievance. We will not construe NRS 288.150(5) to empower a local
government employer to unilaterally rewrite a provision that was
mandatorily bargained-for. Because the Board's decision did not deprive
LVMPD of any contractual or statutory rights, we affirm the Board's
decision.
The Board's award of assignment differential pay
LVMPD contends that the Board could not award Jenkins
ADP because there is no property right in such pay under the CBA. NRS
288.110(2) states that "Nile Board, after a hearing, if it finds that the •
complaint is well taken, may order any person to refrain from the action
complained of or to restore to the party aggrieved any benefit of which the
party has been deprived by that action." This court has previously
concluded that this language is plain and unambiguous. See City of
Henderson v. Kilgore, 122 Nev. 331, 335, 131 P.3d 11, 14 (2006)
(concluding that pursuant to NRS 288.110(2), the Board does not have
authority to grant an injunction until after it has held a hearing and found
the complaint is well taken).
Here, the Board held a hearing, found that the complaint was
well taken, and issued a remedy to restore the benefits Jenkins was
deprived of based on LVMPD's unfair labor practice, which included back-
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pay for the ADP of 8% that he lost as a patrol sergeant and being
presently restored to receive the ADP of 8%. Therefore, we conclude that
the Board did not commit clear error on this issue, and we affirm its
decision.
Jurisdiction of the Board to award attorney fees and costs
LVMPD argues that the Board erroneously awarded
respondents attorney fees and costs because Jenkins was not a prevailing
party. Alternatively, LVMPD claims that the Board lacked jurisdiction to
award attorney fees and costs because LVNIPD's filing of a petition for
judicial review vested all jurisdiction with the district court.
"The Board may award reasonable costs, which may include
attorneys' fees, to the prevailing party." NRS 288.110(6). "It is generally
accepted that where an order of an administrative agency is appealed to a
court, that agency may not act further on that matter until all questions
raised by the appeal are finally resolved." Westside Charter Serv. Inc. v.
Gray Line Tours, 99 Nev. 456, 459, 664 P.2d 351, 353 (1983). "The rule is
based on common sense" to ensure that a "court's jurisdiction over the
subject matter of an appeal must be complete and not subject to being
interfered with or frustrated by concurrent action by the administrative
body." Id. (quoting Fisch back & Moore of Alaska, Inc. v. Lynn, 407 P.2d
174, 176 (Alaska 1965), overruled on other grounds by City & Borough of
Juneau v. Thibodeau, 595 P.2d 626 (Alaska 1979)). However, "[o]peration
of the rule is limited to situations where the exercise of administrative
jurisdiction would conflict with the proper exercise of the court's
jurisdiction." Id. (internal quotation omitted).
This court has stated "that a final judgment is one that
disposes of all the issues presented in the case, and leaves nothing for the
future consideration of the court, except for post-judgment issues such as
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attorney's fees and costs." Lee v. GNLV Corp., 116 Nev. 424, 426, 996 P.2d
416, 417 (2000). This is because "[a] post-judgment order awarding
attorney's fees and/or costs may be appealed as a special order made after
final judgment, pursuant to NRAP 3A(b)(2)." Id. Here, the Board's
original order included an award for costs and attorney fees in an
unspecified amount; it did not finally resolve that issue. After more than
ten days, making the Board's decision final for purposes of NRS
233B.130, 2 pursuant to NAC 288.360(3), LVMPD filed its petition for
judicial review. Then, the Board filed a second order awarding the
monetary amount of attorney fees and costs. More than ten days after
that order, making it final for purposes of review, LVMPD amended its
petition for judicial review to challenge the Board's award of attorney fees
and costs.
Therefore, the award of attorney fees and costs was not
properly before the district court upon LVMPD's filing of its original
petition for judicial review because the Board had not yet actually
determined the specific award. Because the award was not determined by
the first order, we conclude that the Board was not precluded from taking
subsequent action on the issue because it was outside of the scope of
LVMPD's original petition for judicial review. Ten days after the Board
filed its second order awarding attorney fees and costs, that order became
a final judgment for purposes of NRS 233B.130. Accordingly, when
LVMPD amended its petition for judicial review to include a challenge to
that final order, the issue of attorney fees and costs was properly before
We note that NRS 233B.130 has been amended by 2015 Nevada
2
Laws Ch. 160 (A.B. 53).
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the district court. Thus, we conclude that the Board had jurisdiction to
award Jenkins attorney fees and costs. Based on the foregoing, we
ORDER the judgment of the district court AFFIRMED.
/ , C.J.
Hardesty
Cherry
Chuuttv ,
J.
J.
Saitta
J.
29:224.8r3/4a
Gibbons
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cc: Hon. Ronald J. Israel, District Judge
Thomas J. Tanksley, Settlement Judge
Marquis Aurbach Coifing
Aldrich Law Firm, Ltd.
Attorney General/Las Vegas
Eighth District Court Clerk
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