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In re
Webb County, Texas
and
Combined Law Enforcement
Agencies of Texas and
Webb County Deputy Sheriffs
Association
103 LA
(BNA) 446
Case No. A-70-390-0024-94
June 4, 1994
William L. McKee, Arbitrator
Did the Webb County Commissioner’s Court violate the CBA,
specifically Article XVI Section 2 by their (sic) failure to direct Webb County
Sheriff Juan Garza to reduce his work force at the Webb County Detention Center
by seniority?
Background
Webb County, Texas encompasses the City of Laredo, Texas on
the Texas-Mexico border. Across the Rio Grande River to the south is its sister
city, Nuevo Laredo, Mexico. Like many U.S.-Mexico border areas, Laredo and Webb
County have experienced a burst of economic development following passage of
the North American Free Trade Act in 1993.
Apart from the stirring of trade-related economic activity,
Webb County, until December 20, 1993, also had a brisk business in housing
convicts awaiting transfer to the institutional divisions of the Texas
Department of Criminal Justice and federal prisons. The County received payment
for each state or federal prisoner housed at the Webb County Detention Center,
amounting to an average daily “gain” for the County of approximately $5,000 for
the three months preceding December 20, 1993. An inmate riot took place on
December 20, 1993, however, resulting in such destruction that the facility was
no longer suitable as a prisoner detention center and jail. On December 21, the
County closed the facility. The next day the Webb County Commissioners
Court--i.e., the county administrative body--eliminated all expenditures under
the Webb County Detention Center Budget and, through its County Attorney,
informed the Webb County Sheriff that it eliminated all Detention Center
employment positions due to the loss of the facility and its funding support.
A total of 77
employees received layoff notices from the Sheriff as a result, but the County
returned some of the initial group back to work subsequent to the layoff. The
Deputy Sheriffs Association (hereafter known as the Association) and its union,
the Combined Law Enforcement Agencies of Texas (CLEAT), argued that the
positions of 34 of the 61 deputies eventually laid off should have been
protected because there were 34 deputies with less seniority who did not lose
their jobs. This argument did not convince County authorities, however, and the
resulting stalemate led to the instant dispute.
At the hearing, the parties submitted detailed stipulations
of facts and propositions of law. Testimony was not presented by either party,
on their request, but representatives of each made summary oral statements of
their positions and responded to the arguments of the other side. Both parties
declared at the end of the hearing that the issue was properly before the
arbitrator and that they had nothing further to offer into evidence.
The Collective Bargaining Agreement
Article II -- Employment, Promotion, Demotion and Transfer
(1) Employment, promotion, demotion or transfer shall be within the prerogative
of the Sheriff and in accord with the Sheriff’s Agreement subject to a vacancy
existing or reclassification having previously been approved by the
Commissioners Court.
Article III -- Sheriff’s Agreement
Section 1. Negotiations. Bargaining on a mutually
convenient date, the Sheriff and the Association shall begin negotiations on an
agreement encompassing all sections of the prior contract dealing with
interdepartmental policies, procedures and administration. Specifically, the
entirety of Article XII -- Grievance Procedures -- may be modified by the
Sheriff’s Agreement.
It being the agreement of the parties that separate
contracts be bargained for between the County and the Association as well as
between the Sheriff and the Association on matters over which each respective
party exercises authority. Said agreement shall constitute a separate contract
to be collectively bargained for between the Sheriff and the Association
covering a period of time agreed upon by the parties.
Section 2. Signatures Required. It being the intent of the
parties that each collective bargaining contract encompass (sic) those areas
over which each respective governmental entity exercises authority, it is
specifically understood and agreed that execution of the contract between the
Sheriff and the Association shall require only the endorsements of the Sheriff,
the Association and the County Attorney, the latter for the purpose of
attempting to assure that no responsibility shall be affected by said Sheriff
-Association Agreement.
Article XVI -- Seniority
Section 2 Seniority (that is, length of continuing service
in the employment of Webb County) shall be considered only in determination of
rights priorities in the following situations:
(b) Lay off.
Webb County Operational General Order
Sheriff Staffing Plan/Budget Administration
Staffing at the Law Enforcement and the Detention Center
shall be reduced on the basis of 5 employees for every 48 prisoners lost;
inversely every increase of at least 24 prisoner (sic) shall activate 2
employees and the subsequent increase of 26 prisoners shall activate 3
employees more . . .
Budgeted expenditures for operations shall be monitored
closely. Any reduction in prisoner man days shall reduce operational costs
proportionately.
Webb County Personnel Policies and Procedures Manual
4.40 Layoffs:
An employee may be laid off because of changes in duties,
reorganization, lack of work, or lack of funds. . . . Layoffs shall be carried
out by either of the following steps:
It shall be understood that the elected official shall be
the sole authority on approving who will be laid-off from his/her department .
. .
The Texas Local
Government Code
Section 85.003
Deputies
(c). A deputy serves
at the pleasure of the sheriff.
Section 151.001 Officer Applies to Commissioners Court for
Authority to Appoint Employees
(a). A district, county, or precinct officer who requires
the services of deputies, assistants, or clerks in the performance of the
officer’s duties shall apply to the Commissioners Court of the county in which
the officer serves for the authority to appoint the employees.
Section 151.002 Commissioners Court Adopts Order
Authorizing Appointment of Employees
After receipt of an application under this subchapter, the Commissioners
Court by order shall determine the number of employees that may be appointed
and shall authorize their appointment.
Section 151.003 Officers Make Appointments
After the entry of the Commissioners Court’s order, the
officer applying for the employees may appoint them.
Section 151.004 Commissioners Court May Not Influence
Appointment
The Commissioners Court or a member of the Court may not
attempt to influence the appointment of any person to an employee position
authorized by the Court under this subchapter.
As exclusive bargaining agent for the deputy sheriffs
employed in the Webb County Sheriff’s Department, pursuant to the terms of the
Texas Labor Code Ann. Section 74.102, the Association represents deputy
sheriffs laid off as result of the closing of the Detention Center. Webb
County, Texas is a political subdivision and “public employer” as defined in
the Texas Labor Code Ann. Section 174.03. In addition to locally developed
policies and rules, The Texas Local Government Code and the parties’ Collective
Bargaining Agreement define specific elements of the working relationship
between deputies and their employer, Webb County.
Separation of
Powers: At issue here is whether the County violated its Collective Bargaining
Agreement with the Webb County Deputy Sheriffs Association by failing to pursue
a layoff Procedure based on seniority. This question is complicated by several
issues. Not the least of these is the
ambiguity of contractual provisions. The separation of funding and employment
powers between County Commissioners and the Sheriff also obscures an
interpretation of the Agreement.
In effect, State law and Webb County regulations separate
the funding and employment decision powers between the Sheriff’s office and the
County Commissioners Court. The Texas Local Government Code establishes
detailed controls on the Sheriff’s and County Commissioners Court’s powers in
the funding and appointment of deputy sheriffs. According to Section 151.004,
the Commissioners Court cannot “attempt to influence the appointment of any
person to an employee position authorized by the Court under this subchapter.”
Section 85.003 specifically identifies deputy sheriffs and imposes the further
restriction that “a deputy serves at the pleasure of the sheriff.”
Clearly, the
Sheriff, and not the Commissioners Court, holds the power of appointment. Such power covers hiring decisions and also typically,
but not necessarily, extends to employment separations and layoffs. The Local
Government Code addresses this issue by investing in the Sheriff the exclusive
power to select deputies for separation in its specification that the “deputy
serves at the pleasure of the sheriff.” Further, the County Policies and
Procedures Manual reinforces this investiture of power in Section 4.40.
Alternatively, the Commissioners Court holds the power of
the pursestring. The Local Government Code in Section 151.001 requires the
Sheriff to “apply to the Commissioners Court of the county in which the officer
serves for authority to appoint the employees.” Section 151.002 extends the
Commissioners Court’s powers by specifying that “the Commissioners Court by
order shall determine the number of employees that may be appointed and shall
authorize their appointment.” However, Section 151.004 prohibits the Court from
attempting “to influence the appointment of any person to an employment
position authorized by the Court . . .”
Layoff: Section 440 of the Webb County Personnel Policies
and Procedures Manual authorizes County officials to lay off County workers for
“lack of work or lack of funds.” After the riot and fire at the detention
center, the Association did not dispute the necessity of a layoff--only the
manner in which it was imposed. This is the gist of the dispute.
The County Policies
and Procedures Manual provides the Sheriff with two alternative procedures,
performance evaluations or seniority, for selecting employees for layoff. While
neither party produced evidence of the specific procedure followed by the
Sheriff in the detention center layoff, seniority definitely was not the
principal criterion. It must be assumed, consequently, that the Sheriff
followed some form of a job performance approach for which the Association had
no objection except that seniority should have been the guiding principle.
The focus of the dispute in the instant matter is Article
XVI of the Agreement between the County and the Association. This contract
clause identifies seniority as the sole factor to be considered in layoff
decisions. Yet, the seniority provision in the County’s contract with the
association conflicts with other portions of the Agreement, Texas law, and the
County’s Policies and Procedures Manual.
Intent of the Parties to the Agreement: Especially in cases
that involve contract ambiguity, but important in all contract construction
interpretations, is the generally accepted maxim that the arbitrator must
endeavor to identify the parties’ intent. This requires that the agreement be
construed as a whole, rather than in sections isolated from each other. In the
instant matter, the seniority reference in Article XVI is the troublesome area.
A full review of the Agreement, State law, and County rules
reveals a clear intent of the parties to frame their Agreement so that it does
not conflict with the language of other governing documents. With the exception
of Article XVI’s reference to layoff by seniority, the Agreement is internally
consistent and congruent with external authorities (at least to the extent of
the examination required in assessing the instant issue.) The Agreement is
internally inconsistent, however, in its language that refers to layoff by
seniority [Article XVI] when compared to (1) its authorization of the Sheriff
to employ, promote, demote, and transfer [Article II]; (2) the separation of
powers delineated to the Sheriff and the Commissioners Court [Article III,
Section 1]; and (3) the restriction of the Agreement’s coverage to matters
under its authority [Article III, Section 2].
Relative to external authorities, Article XVI Section 2
conflicts with the Texas Local Government Code’s provisions regarding the
Sheriff’s authority over employment of deputies [Section 85.003(c)] and the
restriction on Commissioners Court influence over appointments [Section
151.004]. It also contradicts the layoff provisions of the Webb County
Personnel Policies and Procedures Manual [Section 4.40], wherein a department’s
elected official (i.e., the Sheriff) is identified as the “sole authority” on
approving layoffs and is provided the option to base layoff decisions on
performance.
The parties’ intent regarding the separation of powers is
expressed unambiguously in Article III, as follows:
It being the intent of the parties that each
collective bargaining contract encompass those areas over which each respective
governmental entity exercises authority. . .
Article II of the Agreement grants the Sheriff the
prerogative of “employment, promotion, demotion and transfer,” as indicated
earlier. Layoff certainly falls within the coverage of the power of employment.
As such, the Agreement between Webb County and the Deputy Sheriff’s Association
cannot dictate layoff terms.
The Webb County, Texas and Webb County Deputies Association
Collective Bargaining Agreement explicitly anticipated that the Association and
the Sheriff would successfully negotiate a separate agreement [Article III].
Had such a result been achieved, it is likely that the County and the
Association would have resolved the inconsistency of the existing Agreement’s
layoff clause in Article XVI.
Given the above, a breach of the parties’ intent, as
reflected in the Agreement, would result if Article XVI Section 2 were found to
control layoffs. Other provisions of the Agreement, in addition to the two
external governing documents identified earlier, expressly grant the Sheriff
full and sole power over the appointment and employment of deputy sheriffs. The
Commissioners Court is not authorized to make individual layoff decisions or to
affect the employment of an individual deputy sheriff. While it definitely
influences the Sheriff’s employment decisions through its funding powers, the
Sheriff is the final authority on selecting a layoff procedure for his
department.
Thus, the reference
to layoff by seniority in the County’s agreement with the Association is an
empty accord that cannot be guaranteed by the County. To hold otherwise would
grant the Association an unfair and unreasonable advantage whereby it would
gain through a different county office what it was not able to accomplish in
negotiations with the office that holds authority on the question at hand. The
appeal must be denied.
The appeal is denied.