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Arbitration Award |
Lincoln County
Sheriff’s Department
[Montana]
and
Teamsters Local 2
118 LA (BNA)
1340
FMCS Case No.
02/0318-06959-7
Jack H. Calhoun, Arbitrator, selected by the parties via
procedures of the Federal Mediation and Conciliation Service
Issue
The parties agreed that the
issue in dispute is whether the Employer violated the collective bargaining
agreement when it transferred Richard Larsen from the swing shift to the day
shift. If so, what is the proper remedy?
Relevant Contract Provisions
The following provision of the parties’ collective bargaining
agreement is relevant to the issue in dispute.
A.
Seniority within each work area shall prevail in the preference of vacations,
comp time, overtime, and shift preference. In the interest of public safety,
shift assignments will be made by the Department based upon the manpower needs,
experience and ability. All requests for shift changes will be given full
considerations before a final determination is made. Shift changes shall not be
made without first discussing the change with the affected employee.
Facts
Richard Larsen has been a deputy sheriff in the Lincoln County
Sheriff’s Department since 1990. He has worked the 5:00 p.m. to 3:00 a.m. shift
for a number of years and prefers it to other shifts. He had more seniority
than anyone who wanted the night shift. No one with more seniority made a shift-reference bid for
the swing shift. During his time with the Department he has taught dive
rescue classes to other deputies and members of Search and Rescue, a voluntary
organization. He obtained a defensive tactics instructor certification on his
own time and at his own expense. He used that skill and knowledge to train
reserve deputies. He offered to teach defensive tactics to regular deputies but
was not instructed as to how it was to be scheduled. He also serves as field
training officer in training new deputies and evaluating their
performance.
In early January of 2002 Sergeant Bowe mentioned to Deputy Larsen
that he, Larsen, might be assigned to the day shift because he had not been on
day shift for some time. On January 11, 2002, when Larson arrived at work, he
saw that the new schedule for the coming quarter of February, March and April
showed his name typed in for the day shift. When he asked Sergeant Bowe why he had been assigned to
days, Bowe told him he had been on the night shift too long. Deputy Larsen
expressed his displeasure with the assignment and pointed out that other
deputies had been on the night shift longer than he. Bowe promised to
check into the matter.
Bowe later told Larsen that
Sheriff Anderson had stated three reasons why he wanted Larsen on the day
shift: (1) Larsen had failed to teach the diving class, (2) he had not taught a
defensive tactics class to the Department, and (3) his overall attitude toward
the other employees was a consideration. The Sheriff was adamant that Deputy
Larsen work the day shift for a quarter. Larsen had never been counseled or
reprimanded for any of the alleged failures mentioned by Bowe or for any other
reason. He has no disciplinary record. No performance evaluation has been done
on Deputy Larsen since Andersen has been in office.
Later in January of 2002,
Lieutenant Newman stated in a memorandum to Sheriff Anderson that he had
explained to Deputy Larsen at a meeting that the shift change was not made for
disciplinary reasons, but rather to give him a break from night work. Larsen, the
memorandum stated, was advised that some of the behavior he had exhibited led
the administration to believe he needed a break from the night shift. The
purpose was to give him a break so he could change his attitude and behavior.
Deputy Larsen was not told that he was being assigned to the day shift due to
public safety concerns.
No other deputy requested a
change to the swing shift. The deputy working the day shift was ordered to work
the swing shift, despite the fact he wanted to work days. There was no conflict
with Larsen working the swing shift and teaching the classes he had taught in
the past. The Sheriff thought Larsen was “burned out” and that the day shift
would be good therapy for him.
Deputy Larsen’s testimony refuted all of the six points raised by
Lieutenant Newman in his memorandum to the Sheriff, which was written in
mid-January, but which was undated. Newman did not testify at the hearing.
The language in the seniority clause of the collective bargaining
agreement has existed since 1979. Infrequently, over the years the Sheriff has
used an “administrative (day) shift” to which deputies were assigned. The shift
has been a part of the regular shift bidding process when no one is assigned to
it. Competitive bidding is used to determine the three-month shift schedule
unless someone is assigned to the administrative shift. When a deputy is
assigned to the administrative shift, that day shift is removed from the
bidding process. Deputy Larsen was the first employee to file a grievance over
being assigned to the administrative shift.
Summary of Union’s
Position
The Union contends the Employer violated the seniority provision
of the collective bargaining agreement when it assigned Deputy Larsen to the
day shift against his wishes. Larsen had more seniority than anyone who wanted
the night shift. No one with more seniority made a shift-preference bid for the
swing shift position. The first principle stated in the seniority provision is
that seniority prevails. The second principle states that shift assignments
will be made by the Department in the interest of public safety, based on
manpower needs, experience and ability. The third principle is that a shift
change will not be made without first discussing it with the affected
employee.
If there were, for example, terrorist activity or a hostage
situation, the Sheriff could make assignments to shifts without violating the
seniority provision of the contract. No incidents of public safety necessitated
the change that was made in this case. No evidence was offered to show a risk
to public safety. There was no contention regarding manpower needs, experience
or ability. The Sheriff simply wanted to exercise the flexibility he sought
without reference to his contractual obligations. The record shows that Larsen
was assigned to days after Bowe talked to him about the Sheriff’s wish to have
more flexibility in scheduling. The change was then ordered.
Deputy Larsen specifically addressed the three reasons offered by
Sergeant Bowe. His work with the dive-rescue and defensive tactics classes was
voluntary, not part of his job description. There was no conflict between his
swing shift work and teaching the classes. While Larsen was on the day shift,
the Sheriff did not discuss setting up classes with him. There was no
documentation indicating that Larsen was burned out. On cross-examination,
Andersen said he had no such documentation.
Deputy Larsen also addressed the additional six allegations made
in Lieutenant Neuman’s memorandum issued sometime after January 18, 2002.
Larsen denied sending a nasty note to a secretary. He simply wrote her a note
asking who opened his mail. Her response was that she had done so by mistake.
Larsen did not remember Lieutenant Neuman telling him to teach a class around
the first of 2002. He asked that in the future Neuman put such request in
writing. Neuman, who did not testify, alleged Larsen got mad and threatened to
charge the Department with overtime when he was called at home about a
work-related issue, and that Larsen hung up the telephone on Bowe when he asked
about putting on a class for Search and Rescue. Larsen testified to the
contrary. Bowe, who did testify, was in agreement with Larsen. No dive
certifications were lost. Deputy Larsen has always been available to conduct
the class. Larsen did not complain about being on night shift. He was referring
to the lack of communication between the Undersheriff and the swing shift
personnel.
It is recognized by the parties that all shifts are bound by the
obligations of the seniority provision in the contract. While some deputies may
have been assigned to the “administrative shift” out of seniority, they might
have had valid grievances. That none was filed is not relevant.
Summary of Employer’s Position
The Employer contends that
it was not a violation of the collective bargaining agreement to assign Deputy
Larsen to the day shift. The “public safety” exception to the bidding process
is not limited to existing emergencies, but includes matters that may affect
the responsibility of the Sheriff to protect the safety and welfare of
citizens. Past practice in the Department supports both the existence of the
administrative shift and its interpretation of “public safety.” Sheriff
Anderson was concerned about Deputy Larsen approaching “burn out” on swing
shift and believed a change to day shift would benefit him personally and
facilitate his conducting dive rescue and defensive tactics training classes.
The essential question here involves the meaning of the term “public
safety.” The sources of contract interpretation, in the context of arbitration,
include the language itself, and, to the extent it is ambiguous, bargaining
history and past practice. An agreement is ambiguous if plausible contentions
may be made for conflicting interpretations. The “public safety” exception to
the shift bidding provision is ambiguous because plausible contentions are
being made for conflicting interpretations of the exception.
Past practice supports the Employer’s interpretation of the “public
safety” exception. The administrative day shift has sometimes been assigned and
sometimes the subject of the bidding process. When a deputy is assigned to the
administrative shift, that day shift is removed from the bidding process. Such
assignments have not historically been made as the result of emergency
situations, but rather for public safety considerations related to the general
welfare and safety of the citizens and/or the deputies involved. No grievances
have ever been filed over these assignments in the past.
The assignment of Deputy Larsen from swing shift to day shift was
meant to relieve him from “burn out” and to help his attitude toward his job
and co-workers. It was also meant to help him prepare and conduct training
classes. These are legitimate public safety concerns.
Public policy favors the Employer’s interpretation of the
agreement. It allows the Sheriff
limited flexibility in making shift assignments, notwithstanding
seniority rights contained in the collective bargaining agreement. This is
essential to a well-run, efficient and effective operation. If only seniority
were considered, in placing deputies in shifts, the Sheriff would have no
active role in the process and could only react to public safety concerns,
versus being pro-active for the benefit of both department personnel and the
public.
The language of the seniority provision explicitly states manpower
needs, experience and ability are to be considered along with seniority.
Viewing the language as a whole, the common sense interpretation is that the
drafters of the agreement were looking for a balance. They intended seniority
to be balanced with manpower needs, ability and experience in assigning
deputies to shifts.
Opinion
The role of an arbitrator in interpreting collective bargaining
agreements is to determine the parties’ intent. It is the obligation of the
arbitrator to construe an agreement so that the parties’ intent is carried out.
Where that intent is not clear from the language of the agreement, evidence of
bargaining history and the parties’ administration of the agreement is useful
in determining the meaning of ambiguous language. Labor and Employment
Arbitration, §9.01 [2], Bornstein, Gosline and Greenbaum gen. eds.,
2002.
The language of Article 4A, Seniority, in the agreement that is in
dispute here is anything but clear and unambiguous. It is reasonably
susceptible to more than one meaning, as the parties have expressed in their
arguments. That being the case, a consideration of the evidence on the record
showing how the agreement has been administered over the years is necessary.
There was no evidence of bargaining history offered by either party; therefore,
the intent manifested by the parties to each other during past negotiations is
not a source from which the meaning of the language can be ascertained.
Where contract language is
ambiguous, as it is in this case, an examination of the Employer’s assertion
that there was a past practice of the Sheriff assigning deputies to the
administrative shift rather than putting the shift up for bid is necessary.
Since that assertion implies agreement by mutual conduct, the burden of proving
it was upon the Employer. The proof offered was the testimony of the Sheriff
and a sergeant. They stated that the use of the administrative shift as an
assigned shift did not happen frequently. It was assigned at times, but when it
was not assigned, it was bid. They also stated a provision for an
administrative shift existed in one of the Department’s manuals. There was no
evidence the manual was the subject of negotiations by the parties to the
collective bargaining agreement.
For a past practice to be
binding on the parties to a collective bargaining agreement, it must be: (1)
unequivocal; (2) clearly enunciated and acted upon; and, (3) readily
ascertainable over a reasonable period of time as a fixed and established
practice accepted by both parties. North Slope School District and
North Slope Education Association, 98 LA (BNA) 697 (Corbett, 1992). The
frequency of a practice has significance inasmuch as it indicates knowledge by
the other party of the practice, which is necessary before one can assume the
parties’ conduct represented a mutually accepted response to a particular
situation. Unless it is
established that the alleged past practice was a mutually agreed upon response
to a situation, the practice will not be treated as binding, but rather as a
mere present way of doing things. Celanese Corp. of America, 24
LA (BNA)168 (Justin 1954). Claims of ignorance are often rejected where the
practice was widespread and frequent. Johnson Brothers Wholesale Liquor,
70 LA (BNA)1256 (Heneman 1978).
The practice of the Sheriff
of occasionally and sporadically assigning a deputy to the administrative shift
did not rise to the level of a binding past practice. The admittedly infrequent
assignment to the shift outside the bidding process by the Sheriff cannot serve
as a basis for implying that the practice represented mutually accepted
conduct. Moreover, the practice was not fixed. The shift was bid usually.
Only infrequently did the Sheriff assign deputies to it out of seniority.
The ambiguity of the collective bargaining agreement cannot be
made clear by reference to past practice for the reasons just stated. The term “public
safety,” the exception to the shift bidding process, is argued by the Employer
not to be limited to existing emergencies, but rather includes matters that
affect the Sheriff’s basic responsibilities. Since his responsibility is the
safety of the public, the exception would seem to include everything the
Department does, if the employer’s argument is accepted. In fact, Lieutenant
Bowe testified that “public safety” was anything sheriff’s deputies do.
To adopt the broad interpretation urged by the Employer, however,
would render meaningless that part of the seniority provision dealing with
shift bidding. If the Sheriff could use any situation that arose, whether it be
an extreme emergency or simply a situation that was merely out of the ordinary,
to invoke the public safety exception, seniority in shift bidding would become
meaningless.
Ordinarily all words in an agreement should be given effect. If
alternative interpretations of a clause are possible, one of which would give
meaning and effect to another provision of the contract, while the other would
render the other provision meaningless or ineffective, the inclination will be
to use the interpretation that would give effect to all provisions. How
Arbitration Works, Elkouri &Elkouri, Volz and Goggin, Eds., Fifth Ed.
1997.
Based on that principle of
contract interpretation, it seems clear the parties did not intend that the
language of the seniority clause be interpreted as broadly as what is urged by
the Employer. To give meaning to shift bidding by seniority, it is necessary to
interpret the public safety exception to mean those situations that are urgent
and require an extraordinary adjustment of the deputy workforce. The routine
administration of personnel functions such as existed in this case cannot be
interpreted as broadly as what is urged by the Employer. To give meaning to
shift bidding by seniority, it is necessary to interpret the public safety
exception to mean those situations that are urgent and require an extraordinary
adjustment of the deputy workforce. The routine administration of personnel
functions such as existed in this case cannot reasonably be said to create an
exception to shift bidding by seniority.
Under this, a narrower
interpretation that the Employer argued for, the Sheriff’s ability to run an
effective and efficient law enforcement agency will be more limited but only to
the extent the collective bargaining agreement that was negotiated by the
parties reasonably limits it.
In summary, persuasive proof of mutuality was not introduced;
therefore, there was no basis to conclude that a binding past practice existed.
The public safety exception to shift bidding by seniority does not allow the
Department to exercise unfettered discretion in creating and filling an
administrative shift. I find the Employer violated the collective bargaining
agreement when it transferred Richard Larsen from the swing shift to the day
shift. Accordingly, I will enter an award.
The grievance is sustained.
The Employer is hereby ordered to cease and desist from violating the seniority
provision of the collective bargaining agreement.