Here at Navajo Labor Commission hearing where Commission is hearing Office of Navajo Labor Relations complaint filed by five former senior accountants against Controller Mark Grant for illegally laying them off in September 2013.

CONTROLLER MARK GRANT STILL TESTIFYING AND BEING QUESTIONED BY HIS ATTORNEY, NAVAJO JUSTICE DEPARTMENT ATTORNEY HENRY HOWE.
the layoff charts were filled out, starting in July 2012 and when had 39 on layoff list and would revise until had final iist.

DID YOU KNOW BEFORE SEPTEMBER WHO WOULD BE LAID OFF? yES. WHY DIDN’T U GIVE 15 DAY NOTICE OF LAYOFF? there’s a couple of reasons, number one, budget not final and Navajo Council didn’t approve budget until Sept. 15 or 20 whichi s beyond 15 day timeline and lot of discussin that prez veto cuz he didnt like it. not until saturday, sept 28, when prez signed and gave us only two days before end of fiscal year to notify individuals.

EXHIBIT F HANDED TO GRANT BY HOWE, WHICH IS ONE OF FIVE LAYOFF NOTICE, DATED SEPT. 27, 2013. YOU SAID YOU WANTED TO WAIT UNTIL PREZ SIGNED ANNUAL 2014 BUDGET BEFORE NOTIFYING EMPLOYEES OF LAYOFF BUT LAYOFF NOTICE IS DATED SEPT. 27 AND PREZ SIGNED BUDGET ON SEPT. 28. Sept. 27 was a friday and only one day from end of September and so there wouldn’t be enough time for Continuing Resolution which meant prez had to sign off on budget. we had two nonNavajos out of 250 employees. one accounting manager and other accountant and he said he would leave rez soon cuz wife leaving.

WERE FOLKS LAID OFF QUALIFIED FOR EITHER OF THOSE POSITIONS? no cuz no degree in finance and accounting.

DID YOU IN MOST RECENT BUDGE PROCESS, LAY OFF ANYONE? we eliminated vacant positions.

YOU SAID ELEVEN PEOPLE LAID OFF. WHAT WAS EFFECT ON CONTROLLER’S OFFICE IN GETTING JOB DONE? it put extra work load on remaining employees and what’s happened for past 4 years. We have gotten job done slowly. KPMG auditor and federal government has findings regarding level of rsources and we have inadequate level of resources at this time to address such a large organization.

CROSS EXAMINATION OF CONTROLLER MARK GRANT BY ATTORNEY DAVID JORDAN
JORDAN NAMES FOUR OFFICE OF THE CONTROLLER EMPLOYEES AND ASKS IF THEY WERE LAID OFF? No.

NOW AS I UNDERSTAND EXHIBIT E IS MATRIX DONE ON CRITERIA OF WHO LAID OFF? That’s correct.

EXHIBIT E (WHICH IS THE DOCUMENTS USED TO EVALUATE OFFICE OF THE CONTROLLER EMPLOYEE FOR POSSIBLE LAYOFF) PRODUCED BY NAVAJO NATION AND IS THAT FINAL? Final version.

THIS DOCUMENT RELIED ON MAKING LAY OFF DECISION AND IT SHOWS THAT MY CLIENT, LEVON SMILEY, A VETERAN, SCORED 6.08 IN 2011, WHICH WAS HIGHER THAN FOUR OTHER EMPLOYEES, WHO DIDN’T LAID OFF. AND IN 2012, SMILEY SCORED HIGHER THAN TWO OTHER EMPLOYEES. IS THAT TRUE? There were different supervisors involved and so that’s how the scoring came out.

YOU ARE NOT ANSWERING QUESTION, IS MY CLIENT’S (SMILEY) OVERALL SCORES HIGHER THAN TWO OTHER EMPLOYEES? yes.

WAS ONE OF THOSE TWO A VETERAN? I don’t know.

HOW DO YOU NOT KNOW IF ONE OF YOUR EMPLOYEES WAS A VETERAN? not on score sheet.

WERE YOU AWARE WHEN THIS SCORING SHEET WAS DEVELOPED THAT NAVAJO LAW MANDATED YOU TO RETAIN VETERANS? Yes.

SO WHY WASN’T VETERAN STATUS CONSIDERED IN YOUR OFFICE’S LAYOFFS? It is more important to get job done, not about veterans or whiteman. we need to get job done.

EVEN THOUGH TRIBAL POLICY AND LAW SAYS RETAIN VETERAN AND NO LAYOFFS OF NAVAJOS BEFORE NON-NAVAJOS. DO YOU UNDERSTAND NAVAJO PREFERENCE IN EMPLOYMENT ACT? yes.

LET’S TALK ABOUT NON-NAVAJO EMPLOYEE, WHO DIDN’T GET LAID OFF BECAUSE YOU SAID HE INFORMED YOU THAT HE WAS LEAVING AT END OF YEAR. DID ANY OF MY CLIENTS QUALIFY FOR HIS POSITION? No.

I UNDERSTAND THAT THE NEW QUALIFICATIONS FOR ACCOUNTANTS HAD GRANDFATHERED IN MY CLIENTS? yes.

IS THERE ANYTHING IN POLICY TO USE NEW QUALIFICATIONS FOR LAYOFFS? They were not qualified cuz under the new qualifications when any position becomes vacant then new qualifications begin.

MARIETTA ROAN, MY CLIENT, HAS B.S. IN BUSINESS ADMINISTRATION. DID U KNOW THAT? No

YOU TOLD COMMISSION THAT NONE OF MY CLIENTS QUALIFIED? SO WAS ROAN QUALIFIED TO TAKE POSITION OF NON-NAVAJO? Yes

ARE YOU READY TO TELL COMMISSION THAT YOU VIOLATED LAW BY LEAVING NON NAVAJO IN POSITION? no cuz there is also performance, work record.

DID ROAN QUALIFY? no cuz of other factors.

THIS IS YOUR STAFF EVALUATION OF HER. YOU DECIDED THAT NON NAVAJO PERFORMING BETTER. yes. all accountants put in same pool.

DID YOU MAKE EFFORT TO FOLLOW LAW TO RETAIN NAVAJO BEFORE ALL NON NAVAJOS LAID OFF? i belive we did. i would have to consult with manager. based on performance, she would not have been retained.

WHERE DO YOU FIND PERFORMANCE IN NAVAJO LAW REGARDING LAYOFFS? LAW SAYS “SHALL” RETAIN NAVAJO OVER NON-NAVAJO. IS THAT DISCRETIONARY OR MANDATORY? mandatory

THE NON NAVAJO THAT CONTINUED UNTIL DECEMBER, WHAT POSITION DID HE HOLD? i would have to check.

SO YOU CAN’T SAY THAT YOU RETAINED NAVAJO OVER NON NAVAJO? we used performance.

WHEN WAS THIS NON-NAVAJO PROMOTED TO ACCOUNTING MANAGER? dont remember.

THE NON-NAVAJO WAS PROMOTED AFTER MY CLIENTS WERE LAID OFF. NON NAVAJO WAS JUST ACCOUNTANT, SAME AS MY CLIENTS? i would have to check.

WHAT I DON’T UNDERSTAND, IF YOU KNOW VETERANS PREFERENCE AND NAVAJO PREFERENCE, WHY WEREN’T THOSE MANDATORY REQUIREMENTS IN YOUR MATRIX/DECISION MAKING FOR WHO WOULD BE LAID OFF? DID YOU CARED MORE ABOUT PERFORMANCE INSTEAD OF FOLLOWING NAVAJO LAW? we felt we met law.

DID U MEET WITH NAVAJO DEPARTMENT OF JUSTICE ATTORNEY TO MAKE SURE FOLLOWING YOU WERE FOLLOWING THE LAW REGARDING LAYOFFS? yes.

WHEN YOU WERE DONE MEETING WITH NDOJ ATTORNEY, DID YOU UNDERSTAND THAT YOU FOLLOWED THE LAW AND NAVAJO PREFERENCE? we always felt followed law but may have missed preference.

EXHIBIT E, PERFORMANCE GETS 15 PERCENT AND FIVE POINT SCALE UNDER PERFORMANCE, AND DID THAT BACK UP TO MOST RECENT PERFORMANCE REVIEW? That was considered. and performance review was year old.

AS PART OF THE ANNUAL EMPLOYEE PERFORMANCE REVIEW, EMPLOYEES PARTICIPATES?
Yes.

BUT THESE SCORES/NUMBERS IN YOUR MATRIX FOR LAYOFFS WERE NEVER DISCUSSED WITH EMPLOYEES/
No

NO FEEDBACK?
NO

DID YOU ESTABLISH A SET OF OBJECTIVE PROCEDURES ON HOW TO COME UP WITH NUMERS/SCORES?
we met

I DIDN’T ASK THAT.
I don’t know if you’ll understand but we used rodeo type scoring which involves setting scores based on a comparision of each competitors’ performance.

WHY WAS SCORING HIGHER FOR ATTENDANCE INSTEAD OF QUALIFICATIONS. LET’S LOOK AT ANOTHER EMPLOYEE WHO HAD NO DEGREE? WHY DID SHE GET 10 OUT OF 13 ON QUALIFICATIONS WHEN ROAN HAD DEGREE AND SHE GETS 6 IN 2012. ANOTHER EMPLOYEE WITHOUT DEGREE AND SHE GETS 12 FOR QUALIFICATIONS AND ROAN GETS 6. HOW DID SOMEONE WITH NO QUALIFICATIONS GET DOUBLE POINTS OVER ROAN. AND THAT IS FROM SAME MANAGER. GO BACK TO PERFORMANCE CATEGORY. WORST CAN DO IN PERFORMANCE IS 1? IN 2012, TWO OTHER EMPLOYEES GET ZEROS? WHAT ARE ZEROS? i cannot. i need to talk with manager. The work in Controller’s Office.

DEFINE CONDUCT? How interacted with coworkers and clients.

LOOK AT EXHIBIT M, WHERE DEFINITION OF CONDUCT, UPHOLD CONFIDENCE, COURTESY, FULLY PROMOTE GOALS OF TRIBE. HOW DO YOU KOW THAT MANAGERS DIDN’T GET CONFUSED WHEN THE DEFINITIONS OF CONDUCT, ATTENDANCE AND PERFORMANCE ARE ALMOST SIMILAR? You will know. Managers knew cuz we had numerous meetings.

HOW DOES WORK RECORD DIFFER FROM CONDUCT, PERFORMANCE, ATTENDANCE? when call in at last minute or not call in.

SO WHY DOESN’T IT SAY THAT? It doesn’t need to.

ISN’T IT TRUE THAT EMPLOYEE GOING ON MEDICAL LEAVE WOULD HAVE THAT USED AGAINST HIM OR HER? no, that would be unfair.

YOU SAID FAMILY MEDICAL LEAVE NOT TAKEN INTO ACCOUNT? well, say an employee has a bad accident off the job site and doctor writes medical leave slip. that’s fine but if that employee continue to miss work, at some point their job of reconciling accounts and expenditures is not being done and their work gets put on other people to do the work.

BUT YOU AGREE THAT NATION ALLOWS FAMILY MEDICAL LEAVE? AND YOU ALSO AGREED THAT MEDICAL LEAVE WAS NOT USED AGAINST MY CLIENTS? BUT ARE YOU AWARE THAT ALL MY CLIENTS WERE ALL ON FAMILY MEDICAL LEAVE? yes.

AND SO, IF AN EMPLOYEE RECEIVED APPROVED LEAVE, DID IT NEGATIVELY IMPACT SCORES? it could.

SO EMPLOYEE ON APPROVED LEAVE CUD BE PUNISHED? depends. there is excessive leave. if gone too much; we need them on the job.

EXHIBIT M’s DEFINITION OF ATTENDaNCE, PAGE 1, WHERE DOES IT SAY IN DEFINITION THAT THIS DOES NOT INCLUDE FAMILY MEDICAL LEAVE WHICH WILL NOT BE USED AGAINST YOU? It doesn’t specifically say that.

JORDAN NAMES AN EMPLOYEE AND ASKS GRANT IF HE WORKED FOR CONTROLLER AFTER LAYOFF? Don’t know who he is.

WERE YOU AWARE RETIREES CALLED BACK AFTER LAYOFF? Some came back.

IN LAYOFF POLICY, IT SAYS, NO REGULAR STATUS EMPLOYEE BE LAID OFF WHEN SEASONAL, TEMPORARY, NEW HIRES WORKING. WERE NEW EMPLOYEES STILL WORKING DURING LAYOFF? possible.

READ POLICY AGAIN AND SAYS NEW EMPLOYEES LAYOFF BEFORE SENIOR EMPLOYEES. DID U DO THAT? i wud have to check.

TIMING OF ALL THIS. FROM YOU TESTIMONY, IN JULY, YOU FOUND OUT CUT $2 M FROM BUDGET BUT LATE AUGUST U REALIZED $1 M. FROM LATE AUGUST TO WHEN LAYOFFS, NO ONE SAID PUT MORE MONEY INTO CONTROLLER BUDGET AFTER LATE AUGUST? Correct.

SO AS OF LATE AUGUST, YOU KNOW PROPOSING $900,000 AND YOU ID EMPLOYEES TO BE LAID OFF? We had list pretty finalized.

WHAT STOPPED U FROM GOING TO EMPLOYEES AND TELLING THEM THAT THEY WERE ON LIST TO BE LAID OFF? we weren’t sure be on continuing resolution and if told be laid off, and continue working that we would hurt their feelings.

WAS IT POSSIBLE TO TELL TO THEM THAT THEY WUD BE LAID OFF IF BUDGET DIDN’T CHANGE? not possible. my job is not to jsut look at numbers and names, my job is to run organizaiton and office works together and i was not wanting to name pple and have them feel targeted.

YOUR JOB IS TO FOLLOW LAW/POLICIES, WHETHER YOU LIKE OR NOT? that’s not the point.

ISN’T IT TRUE YOU HAVE TO FOLLOW NAVAJO LAW/POLICES WHETHER YOU LIKE IT OR NOT? yes

ISN’T IT TRUE NAVAJO LAW SAYS GIVE AS MUCH TIME AS POSSIBE OF LAYOFFS? yes

RECESS UNTIL 9 AM ON MAY 14.