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Title: Lane County and Lane County Peace Officers' Association
Date: January 31, 1995
Arbitrator: Jack Calhoun
Citation: 1995 NAC 106

BEFORE THE ARBITRATOR

 

 IN THE MATTER OF THE                                                 )

GRIEVANCE ARBITRATION                                             )

            Between                                                                     )

                                                                                              )

LANE COUNTY PEACE OFFICERS'                                 )

ASSOCIATION (Clothing allowance and)                                OPINION

Walp Grievance),                                                                    )     AND

                                                   Union,                                  )AWARD

            and                                                                              )

LANE COUNTY,                                                                   )

                                                  Employer.                              )

--------------------------------

 

Hearing Held

December 16, 1994

Eugene, Oregon

 

Jack H. Calhoun

Arbitrator

 

--------------------------------

 

 

 

 

REPRESENTATION

 

 


FOR THE UNION:                                               FOR THE EMPLOYER:

 

John Hoag                                                                 David B. Williams

Hoag, Garrettson & Goldberg                    Assistant County Counsel

209 W. 5th                                                     125 East Eighth Ave.

Eugene, OR  97401                                     Eugene, OR  97401

 


BACKGROUND

 

            This case consists of two separate grievances filed by the Lane County Peace Officers' Association alleging contract violations by Lane County.  Both grievances arose from an interest arbitration decision which changed the collective bargaining agreement.  The first is a class action grievance filed June 1, 1994 on behalf of all Lane County Peace Officers' Association members assigned to the County's Community Corrections Center or the Electronic Surveillance Program.  It alleged that bargaining unit members so assigned were required to wear civilian clothing; therefore, under the provisions of the collective bargaining agreement, they should have received a $600 per year clothing allowance.

            The second grievance was filed on June 8, 1994 by the Association on behalf of Deputy Sheriff David Walp.  It alleged the County violated the agreement when it transferred Deputy Walp and subsequently denied him his right to a certain shift and certain days off.

            The parties agreed both grievances were properly before the arbitrator.  Post-hearing briefs were filed, the last of which was received January 9, 1995.

ISSUES

            After reviewing the record, I have determined that the two issues to be addressed are: (1) Did the County violate section 7.2 of the agreement when it refused to provide a clothing allowance to deputies assigned to the Community Corrections Center and the Electronic Surveillance Program; if so, what is the remedy? and (2) Did the County violate section 6.7 of the agreement when it changed Deputy Walp's shift and days off when he was reassigned from the patrol division to the jail; if so, what is the remedy?

RELEVANT CONTRACT PROVISIONS

            The following provisions of the parties' collective bargaining agreement are relevant to the issues in dispute:


            ARTICLE 6

 

...

Work Schedules

6.3  It is recognized the County may, from time to time, find that changes in individual or operational work schedules are in the best interest of governmental operations.  It is agreed that the County may make such changes, provided that except in the case of emergency, the County shall notify the Association and any affected employee ten (10) calendar days prior to the implementation of such change.

. . .

6.7  Employees may bid shifts and days off based upon seniority.  On or about the 1st of November, the employer shall post the shifts necessary for the following year noting the slots for both hours of work and days off.  Employees will bid by signing up for the shifts for three-month periods in November for the following year.  Employees on patrol shall sign up by seniority for any position available on patrol, employees in the jail shall sign up for any position available in the jail, and employees in the work center shall sign up for any position available in the work center...

 

Scheduling Procedure

6.23  Employees shall be allowed to select their shifts and days off on the basis of seniority.

6.24  The County shall post a preschedule which will indicate the number of personnel needed for each shift and indicate the predetermined days off to accomplish necessary personnel strength to assess adequate relief as required by the County.

6.25  The County retains the right to assign personnel to any section, division, or work assignment as deemed necessary without previous notice as long as the assigned shift and days off remain the same.

6.26  After posting of the final roster for the scheduling period, changes in schedules by the County will not be made without good cause...

 


            On March 4, 1994, the parties signed a memorandum of understanding to resolve certain issues that had arisen.  In pertinent part, it broke down shift bidding into work units and stated that shift bidding for calendar year 1994 would be completed and implemented in March of 1994.


            ARTICLE 7

 

Wages and Overtime

7.2

...

Those employees who must wear plain clothes as part of their regular assignment shall receive six hundred dollars ($600) per annum for clothing allowance.

...

 


            STATEMENT OF FACTS

The Clothing Allowance Grievance

            Employees assigned to the Community Corrections Center, which started operations in 1986, were allowed to wear civilian clothing rather than the traditional law enforcement uniform because they believed they could work better with the type inmate found there.  The Community Correction Center provides an alternative to jail for certain inmates by allowing them to have jobs.  At a later date management officials decided upon an alternative uniform for Center employees consisting of slacks, dress shirts, polo shirts, and sweaters.  Employees were fitted for the attire and the County paid for it.

            There were no written rules regarding the mode of attire; however, all employees were made to understand what dress they were expected to wear.  At least one employee, who testified at the hearing, was called in to the sergeant's office and told specifically what civilian clothing she was to wear.  On one occasion a deputy was sent home to change clothing because he showed up for work in his traditional law enforcement uniform.  An option to wear the traditional uniform was never given to the employees, although one sergeant testified he would have allowed them to do so if he could have obtained the consent of his superiors.

            In 1992 the supply source the County relied on for the civilian attire for Center employees ceased to exist.  Employees were told to wear their personal clothing until the problem could be resolved.  Employees, at that point, had to purchase their civilian-type uniforms at their own expense.

            The parties went to interest arbitration in the fall of 1993.  One of the issues in dispute, and on which the parties offered evidence and argument, was a clothing allowance.  No clothing allowance provision had been included in the previous agreement.  The evidence offered by the Association in interest arbitration on the clothing allowance issue was captioned as detective clothing allowance or plain clothes reimbursement for detectives.  During the interest arbitration proceeding, the Association did not offer any evidence regarding a clothing allowance for any group of employees other than detectives.  The interest arbitrator's award resulted in the current clothing allowance provision that is in dispute.

            As of July 1, 1994 the County directed Community Corrections Center employees to wear their traditional law enforcement uniforms.

 


                        POSITIONS OF THE PARTIES

The Union

            The Union contends that deputies who were assigned to work at the Community Corrections Center were told what attire to wear.  After this grievance was filed, the County ordered them to wear uniforms.  At one point, the County even issued uniforms to the Center employees in the form of civilian clothing.  If that had continued, this grievance would not have been filed.

            Although the County argues that the Association intended the uniform allowance to apply only to detectives, the plain language of the contract does not so limit its application.  One of the County's witnesses acknowledged the association never made any such representation during negotiations.

            The Association did not mislead the County as to how the contract language was to be applied.  Negotiations for the new contract started early in 1993.  In 1992 the County stopped furnishing the civilian attire for Community Corrections Center employees and representations were made to them that the County intended to rectify the problem by finding another supplier.  Had the County done so, this issue would not have arisen.

The County

            The County argues that to prevail, the Association must show that the contract provision in question was intended to apply to employees of the Community Corrections Center and that those employees were required to wear plain clothes.  The provision was a new one that was added as a result of the 1993 interest arbitration.  It was an Association proposal.  The Association's evidence at interest arbitration described the provision as "detective clothing allowance" or "detective clothing premium."  The proposal was for plain clothes reimbursement pay for those employees who were assigned to detectives.  The term "plain clothes" reflects the common reference in police work to plain clothes detectives.

            There is no evidence that the parties intended the new contract to apply to work groups other than detectives.  Furthermore, Community Corrections Center employees were not required to wear plain clothes.  They could wear acceptable street clothing rather than uniforms.  They had the option of wearing their uniforms.

OPINION

            It is basic to the arbitration process that the mutual intent of the parties be determined and carried out.  The first point of reference when interpreting a collective bargaining agreement must be the language itself.

            It cannot be disputed that the clear language of the clothing allowance provision of the agreement, if taken alone without relation to other facts, would indicate it was the intention of the parties that all employees who wear plain clothes as part of their work receive the clothing allowance.  However, those other facts cannot be ignored, and it is necessary to look at other evidence of the parties' conduct during negotiations and interest arbitration.

            Although the Association may well not have not misrepresented its position on the clothing allowance issue during negotiations, as it contends, it is abundantly clear from the evidence on the record that when the dispute went to interest arbitration, the Association's proposal was for a clothing allowance for detectives.  While it is not clear why the language that came out of the process did not specifically limit the clothing allowance to detectives, it would be an unreasonable interpretation to conclude the provision was meant to include employees other than the detectives who were specifically addressed in the Association's interest arbitration case.  Moreover, there is ample evidence on the record showing that management had changed its dress code for detectives thereby giving rise to the Association's concern for a clothing cost reimbursement for them.  There is no evidence to show other employees were meant to be included in the proposal.  The County did not violate section 7.2 of the agreement when it refused to provide a clothing allowance to employees assigned to the Community Corrections Center or the Electronics Surveillance Program.

AWARD

            The grievance is denied.  Pursuant to section 17.8 of the agreement, I find that the Association is the losing party on this issue and shall bear the cost of the arbitrator related to this issue.

STATEMENT OF FACTS

The Shift Bidding Grievance

            Deputy Sheriff David Walp served as one of two deputies assigned to the marine unit of the police services division.  When he came to know the County intended to delete one of the two positions, he asked to be transferred to the corrections division.  His request was dated March 14, 1994.  After he submitted his request he took time off and when he returned he found out the other marine deputy had been transferred to the corrections division.  He met with Sergeant McMullen, his supervisor, and asked when he would be transferred.  McMullen said he would work it out, but he needed him to remain in this current position for a period of time to help in the transition.  Walp agreed to help, but expressed concern that he did not want to end up on an undesirable shift or with undesirable days off for a year.  He had make plans around the transfer.

            Sergeant McMullen assured him he would get the shift and days off he had requested.   Walp wanted the swing shift with Friday and Saturday off so that he could accommodate his personal interest of instructing dance on Saturday. 

            Deputy Walp went to the corrections division in mid-April of 1994 and was assigned the swing shift with Thursday and Friday off.  He expected that assignment because it was mid-quarter; however, when the next shift change occurred, he was not allowed to exercise his seniority and get the desired days off.

            On July 1 Walp received a more favorable schedule than what he had from April until July, but it was not what he believed he had been promised if he stayed and helped with the transition as requested.  He did not have Saturday off.

            Sergeant McMullen testified that there was no conversation at all between Walp and him regarding shift bidding at the jail.  McMullen said he was given Walp's shift and days off, and he filled out a triplicate transfer form showing the shift and days off.  He did not produce the form and did not remember where it was.  Walp testified that the transfer form showed the shift and days off for the period until July 1.

            Walp's transfer was done for budgetary reasons based on the needs of the corrections division.

            Section 6.7 of the agreement was the result of an interest arbitration award and required an annual bidding in November for the coming calendar year.  The parties entered into a memorandum of understanding that modified the award.  The memorandum started shift bidding by quarter in March of 1994 and then started it up in November for the entire year.

POSITION OF THE PARTIES

The Union

            The Union maintains that the County violated section 6.7 of the parties' agreement when it refused to allow Deputy Walp to exercise his seniority after the annual bidding process had taken place.  The County's actions violate the agreement because otherwise it could negate section 6.7 by reassigning employees after they have made their annual bid and refusing to let them exercise their seniority.

            While the contract must be read as an integrated unit, section 6.3 is not a blank check that can be used to eviscerate the provisions of section 6.7.  Also, section 6.24 states that shifts and days off must remain the same when the County transfers an employee between division.

            The County did not have good cause to make changes in Walp's shifts and days off under section 6.2 of the contract.  Sergeant McMullen made specific promises to Walp.  The County cannot be allowed to rely on equitable defenses in light of those promises.  There was not an emergency, significant changes in staffing levels, or unforeseen circumstances that significantly impact the sheriff's office.

The County

            The County contends that Deputy Walp was assigned to the police services division.  After the shift bidding process was completed, pursuant to the agreement and memorandum of understanding, and shift assignments in the corrections division were posted, he was transferred to the corrections division for budgetary reasons.  He was assigned to a different shift than the one he had in the police services division.  The issue is whether the contract was violated by assigning him to a different shift when he was transferred to the corrections division.  Section 6.7 addresses only the shift selection process; it does not address changes in shift resulting from reassignment.

            Other provisions of article 6 specifically address this issue.  Section 6.3 gives the county the right to change assignments or shifts with proper notice.  Section 6.25 gives the County the right to transfer employees between divisions without notice if there is no change in shift or days off.  Section 6.26 permits changes in shift schedules for good cause.  All the sections must be read together.

            Deputy Walp did not complain about the shift he was assigned during April, May, and June.  He complained about not getting his preferred shift in July.  Under the agreement, there was no new bidding in June.

            Deputy Walp was entitled to the shift he bid only within the work group he was in at the time of the bidding.

OPINION

            As the County argues, Deputy Walp was transferred to the corrections division after the bidding process had taken place.  However, he would have been transferred sooner had the County not wanted him to remain in his old position after the bidding started.  Moreover, he relied on the word of Sergeant McMullen and believed his request for his shift and days off would be honored July 1 after his delayed transfer.

            Because of Deputy Walp's ability to recall with precision what occurred regarding the conversation he had with Sergeant McMullen, his ability to communicate that recollection, and the lack of any inconsistency in his rendition, I have credited his testimony.  Although Sergeant McMullen filled out Walp's transfer form, which showed his shift and days off, he could not remember exactly what it stated and he did not have a copy available.

            All of the language of Article 6, working conditions, must be given meaning, effect must be given to all the provisions.  In order to give meaning to section 6.7, it is necessary to recognize that deputies have the right to bid on shifts and days off based on seniority.  That specific right necessarily impinges on management's general right, pursuant to section 6.3, to change work schedules.  Section 6.23 reiterates employees' rights to select shifts and days off on the basis of seniority.

            Under the terms of the agreement, the County is permitted to transfer employees without notice as long as assigned shifts and days off are not changed (section 6.25).  After the final schedule is posted, changes cannot be made without good cause (section 6.26).  There is no evidence on the record to support the conclusion that the County had good reason to change Walp's requested shift and days off.

            The County refused to allow Deputy Walp to exercise his seniority under the terms of the agreement.  The County violated section 6.7 of the agreement when it changed his shift and days off when he was reassigned to the jail.

            The compensatory damages sought by the Association were not supported by the evidence on the record.  While Deputy Walp testified he may have lost between $500 and $700 in dance instruction fees, there was no corroborating evidence to support his claim.

AWARD

            The grievance is sustained.  Deputy Walp shall be assigned to the shift and days off he requested, in accordance with his seniority.

            Pursuant to section 17.8 of the agreement, I find the County is the losing party on this issue and shall bear the cost of the arbitrator as it relates to this issue.

            Dated this 31st day of January 1995.

 

                                                                                                                 

                                                                                    Jack H. Calhoun

 

18-19-94OR

 

 

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