Lincoln County Sheriff’s Department
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
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.
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.
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 , 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.