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Title: Josephine County and Josephine County Sheriff's Association
Date: November 7, 2002 
Arbitrator: David E. Pesonen 
Citation: 2002 NAC 105 

ARBITRATOR DAVID E. PESONEN

Josephine County Sheriff’s

Association,  

                 Grievant,  

       And

 

Josephine County

                  Respondent

 

Arbitrator's Decision and Award

 

 

                                                                                            

I.  Introduction

This grievance, styled “Amended Class Action Grievance,” was filed on July 1, 2002, by Josephine County Sheriff’s Association, the bargaining unit for employees of the Josephine County Sheriff’s Office, on behalf of all members of the Association, against Josephine County, the Respondent employer.  A hearing was held on September 9, 2002, in the Josephine County Courthouse in Grants Pass. The Association was represented by John Hoag, Esq. of the Law Offices of John Hoag, P.C.  Respondent was represented by C. Akin Blitz, Esq. of the firm of Bullard, Smith, Jernstedt & Wilson. 

             The parties submitted 33 documentary exhibits and, pursuant to the arbitrator’s direction, submitted other, late obtained documents as attachments to their post-hearing briefs.  Grievant introduced sworn testimony of five witnesses on direct and rebuttal and Respondent likewise introduced sworn testimony of five witnesses.  The matter stands submitted for decision on or about September 21, 2002, upon the arbitrator’s receipt of the parties’ simultaneous post-hearing briefs.

/ / / / /  

II. Statement of the Grievance

 In response to budget cuts imposed on the Sheriff’s Office by the Josephine County Commissioners for the fiscal year beginning July 1, 2002, the Sheriff demoted three Sergeants, Steve Clarke, Jeff Michael and Carroll Huffman, to Deputy or Corporal positions that were within the bargaining unit.  The position of sergeant is the first supervisory promotion level excluded from the bargaining unit.  Each of these now-demoted sergeants was credited with seniority in positions he had formerly held in the bargaining unit, accumulated before being promoted to sergeant. The effect of these demotions, when coupled with credit for prior seniority, was to permit the demoted employees to “bump,” that is displace, several existing employees in the Association who had less seniority.  The result was that Deputies Hobart, Adcock and Meyer were laid off.[1]

             The Association’s  statement of the grievance requests a ruling that “Deputies Hobart, Adcock and Meyer, be retroactively reinstated and made whole, effective the dates of their layoffs; [and] that Deputy Heller be re-promoted to Corporal, effective the date of his demotion. . .”[2]

/ / / / /

III. The Issue.

The issue posed in this grievance is a question of contract interpretation, specifically of Article 13, “Seniority,” and Article 14, “Layoff and Recall,” of the Collective Bargaining Agreement covering the period June 1, 1999 through June 30, 2003 (Jt.Ex.1)(“The Contract”). Article 13.2 provides for two classes of seniority, “Classification Seniority,” consisting of time served in a specific job classification within the Association, and “Office Seniority,” based on all full time employment in the Sheriff’s Office.  

The precise issue is as follows:  Does the language of the Contract support the Association’s position that the parties’ intent in Article 14.1 was that, for purposes of layoff, Sergeant’s Clarke, Michael and Huffman permanently forfeited all of their accumulated seniority when they accepted promotion to their sergeant positions and, upon their demotion into positions within the bargaining unit, they returned to any position they had earlier held in the unit but at the bottom of the Office Seniority list?  And, if the Contract language does not expressly resolve this question, does extrinsic evidence clarify the parties’ intent? 

IV.         Discussion

              A.  The Applicable Law 

       The Association, as the Grievant, has the burden to introduce evidence that the Respondent County breached the Contract when it restored former Sergeants Clarke, Michael and Huffman to their office and classification seniority in the bargaining unit. The law is clear that if the language of the contract unambiguously addresses the issue posed by the grievant, that ends the matter.  As the Oregon Employment Relations Board has often stressed, in interpreting a contract the Board uses the same approach and rules of construction as the courts:

     In Roseburg [I.A.M. Woodworker Lodge v. Roseburg Urban Sanitary Authority, Case No. UP-75-97, 17 PECBR 757, 763 (1998)], we applied the Oregon Supreme Court’s three-part process for interpreting a contract. [Footnote omitted]  Under that process, we first examine the text of the disputed contract provision in the context of the entire agreement.  If the text is unambiguous, no further analysis is necessary.  If the text is ambiguous, we then consider extrinsic evidence that would establish the parties’ intentions.  If that analysis does not resolve any remaining ambiguity, we would turn to appropriate maxims of contract construction. . ., Oregon Univ. Syst. v. Oregon Pub. Emp. Union, Local 503, Case No. UP-61-98 (2001). (Italics added.)

     Furthermore, the Contract contains an emphatic “no modification” clause:

. . .The arbitrator shall have no right to amend, modify, nullify, ignore, or add provisions to the Agreement, but shall be limited to consideration of the particular issue(s) presented to him.  His decision shall be based solely upon his interpretation on (sic) the meaning and application of the Agreement, .  . . (Article 17.2, Step III.)

   B.  The Applicable Contract Provisions

Articles 13.3, 13.4 (Seniority provisions) and 14.1 (Layoff and Recall provisions) provide in part:  

13.3 . . . A promoted or transferred employee shall be given seniority in that classification from the date of promotion or transfer upon completion of the probationary period and this shall establish a new anniversary date for the employee.  In the event of an employee’s promotion or transfer, he will, for purposes of layoff and recall only, retain all accrued seniority within each prior held classification in which he has completed a probationary period. (Italics added.)

 

/ / / / /

 

13.4.  Breaks in Seniority.  Seniority shall be broken or terminated if an employee:

            (1) Quits;

            (2) Is discharged for just cause;

(3) Is laid off and fails to respond to written notice as provided in Section 14.3 [regarding “Notice of Recall from Layoff Status”].

(4) The employee shall suffer no break in seniority providing the employee registers his/her intent to remain on the recall list every ninety (90) days.

(5) Fails to report for work at the termination of an extended leave of absence.

(6) Is retired.

 

14.1. In the event of layoff or recall, Classification Seniority shall govern provided that the senior employee possesses the demonstrated skill, ability and physical ability to perform the available work, and has successfully completed a probationary period in the classification.  Employees in a layoff or reduction in class situation shall only be entitled to bump back to lower job classifications in which they have previously accrued seniority, in which they can perform the duties of the classification, and when they have greater Office Seniority than the employee to be bumped. . . Seniority will be determined in accordance with the ‘Types of Seniority’ as outlined in Article 13, Section 13.2.  (Italics added.)

 

Section 13.2 provides as follows:

Types of Seniority.  Only regular full-time employee (sic) shall have seniority.  Seniority shall be attained retroactively after completion of the probationary period of eighteen (18) months and shall thereafter be established as the employee’s job classification (‘Classification Seniority’) and in the Sheriff’s Office (‘Office Seniority’).  Exhibit C attached to this agreement is a listing of all current employees within the bargaining unit, their current classifications, their Classification Seniority order, and their Office Seniority.  The County shall provide the Association with an updated seniority list in January of each year.

These provisions when read together do not on their face appear ambiguous.  The references in Section 13.3 to an employee’s retention of “all accrued seniority within each prior held classification” and the reference to “greater Office Seniority” in Article 14.1 are unqualified, except with respect to completed probation. 

Consistently, Article 13.4 does not provide for a break in seniority upon an employee’s promotion out of the bargaining unit but within the Sheriff’s Office.  This section necessarily applies only to office seniority, since classification seniority, by definition, would be cut off in any of the events listed in this section. 

            Other provisions of the Contract buttress the conclusion that these articles are not ambiguous on the issue of whether a Sheriff’s Office employee who promotes to a position that is excluded from the bargaining unit nevertheless is covered by the Contract in the event of his or her return to the unit, including the benefit of earlier seniority accumulated while serving in positions within the unit. 

            Article 1.1, the recognition provision in the Contract, provides that the Association is “the sole and exclusive bargaining agent for the purpose of ‘employment relations’ for all employees in the Josephine County Sheriff’s Office who work in a regularly budgeted position. . .”(Italics added.)  There was no evidence that any other bargaining unit represents any  employees of the Sheriff’s Office who are excluded from the bargaining unit. 

Article 2.1, the Management Rights provision, broadly confers on the County the rights, among others, “to . . . transfer and retain employees, . . . , lay off for lack of work or funds . . . , abolish positions or reorganize the departments or divisions.”  Respecting these and other powers of the County under the Contract, this article stresses that “Any term or condition of employment not specifically established or modified by this Agreement shall remain solely within the discretion of the County.”  [Italics added.]

  I find no language in the Contract that specifically modifies the broad seniority rights under Articles 13.3 and 14.1. This conclusion is supported by Article 13.2, which defines “Office Seniority” as seniority acquired “only” by a “regular full time employee . . . in the Sheriff’s Office.”  It is not by its terms limited to full time employees who are members of the Association.   

 Construing the articles at issue in this arbitration “in the context of the whole agreement” ( Oregon Univ. Syst. and Roseburg cases, supra.), the Association’s interpretation of the specific contract language is not supported.

             Nevertheless, the Association contends that several lines of extrinsic evidence establish that the parties historically have interpreted these sections in a manner differently from the Contract’s terms.  The Association relies upon three earlier personnel actions, involving “past practice” in the demotion of sergeants into classifications within the Association, and upon bargaining history in 1993.

              B.  Past personnel actions.

        Past practice that departs from unambiguous contract language is to be relied upon only if the history of the parties’ participation in that practice is unequivocal, clearly stated and acted upon, and is a fixed, established practice accepted by both parties over a reasonably sufficient time to demonstrate that it is consistent with the parties understanding of the contract.  Elkouri and Elkouri, “How Arbitration Works,” p. 632 (5th Ed. BNA 1997).

             The Association first points to a personnel action on April 1, 1999, involving Sergeant Jay Whitmire.  Whitmire’s personnel documents show that he was originally hired as a deputy on March 1, 1980.  He was promoted from Corporal to Sergeant on April 1, 1993.  The evidence is conflicting on the next personnel action.  Kevin Michael, a deputy with 27 years in the Sheriff’s Office and a former officer of the Association, testified that Whitmire was terminated as an “at will” employee and then rehired.  The personnel records reflect an action on March 31, 1999 as a “release” and then a “rehire” on April 1, 1999.  Regardless of the labels given to these actions, the reality is that Whitmire was demoted from sergeant to deputy on April 1, 1999 without a break in service. 

Nevertheless, the Association points to the fact that the County Personnel Office recorded this personnel action on a form used for “new hires,” and the printed line on that form read:   “EFFECTIVE DATE of employment for new hire: 04-01-99.”  The Association contends that this clerical notation establishes that Whitmire was placed in a position within the bargaining unit as a “new hire” on April 1 and, therefore, necessarily could not have had any seniority, despite his earlier time as a deputy and corporal between 1980 and his first promotion to sergeant in 1993. 

It is pretty clear that use of that form to reflect this personnel action was a clerical, not a policy action.  The form only shows that the reason for this personnel action was that Whitmire was a “replacement” for another deputy.  It reflects nothing about his seniority except that he was appointed as a “Deputy-Advanced” and at the top pay scale, suggesting that he was restored to his classification seniority.  This action was reversed a few months later when Whitmire’s classification was changed (reflected on a different personnel action form) from “Deputy Sheriff-Advanced” back to his prior position as “Sergeant-Advanced.” (Ex. 7)

There was no evidence that Whitmire either enjoyed or was deprived of any personnel benefit as a result of his brief demotion to deputy, except pay.  Certainly, if he had “bumped” another deputy the County would have produced such evidence; conversely, if he had been denied bumping because of lost seniority, the Association would have produced such evidence.  Thus the issue that is at the center of this grievance was not involved in this personnel action and no inference respecting the parties’ understanding of the applicable sections of the Contract can be inferred from the clerical procedure used to record Sergeant Whitmire’s temporary demotion.

             The Association contends, however, that a list of employees in the bargaining unit and the dates of their employment in covered classifications buttresses its argument based on the personnel actions involving Whitmire.  Article 13.2 requires that “The County shall provide the Association with an updated seniority list in January of each year.”  Exhibit 5 is such a list with some handwritten annotations concerning calculation of Whitmire’s seniority, prepared by Jerre Petal, an Administrative Assistant responsible for maintaining seniority records in the Sheriff’s Office.  The notes indicate that Whitmire had 13 years of seniority in the Association, a length of time consistent with his “frozen” seniority from hiring in 1980 to his appointment to sergeant in 1993. 

The Association argues that the fact that no such list containing a reference to Whitmire or any other “excluded” employee was ever submitted to it constitutes an implied admission by the County that excluded employees retained no seniority rights, regardless of any prior service in classifications within the bargaining unit.  The sentence   requiring the County to prepare and submit this list, however, comes on the heels of reference to an exhibit to the Contract consisting of “a listing of all current employees within the bargaining unit, . . “ (Italics added.)  Plainly, including in such a list the “frozen seniority” of persons excluded from the bargaining unit was not what the parties intended in Article 13.2.

The County’s having omitted Whitmire from any such list cannot be construed as an admission that he had forfeited his seniority.  In any event, specifically with respect to Whitmire’s status, he was a deputy within the bargaining unit for 3 months before the end of 1999 and was not in the unit in January 2000 when any updated listing would have been prepared.

 The next personnel action upon which the Association relies involved another sergeant, Donna Lasater, who was a records clerk.[3]  Her position was abolished in 1986 and, rather than accept another position as sergeant in the Patrol Division, she elected to fill a newly created records position that was within the bargaining unit.  The Sheriff’s January 22, 1987, letter advising her of this demotion is ambiguous.  It states that she “may be” a member of the Association, suggesting that at that time membership in the bargaining unit was optional.  Secondly, the letter advises that “in the event there are layoffs in the department due to budget cut-backs, you will not be laid off.”  This might suggest that she enjoyed some sort of seniority in her new position, but it is not clear.  What is clear is that the Lasater personnel records reflecting a demotion fifteen years ago cast no light on the issue of “frozen” seniority under the current contract. 

 Finally, with respect to particular personnel actions, the Association seeks to rely on events surrounding the demotion of Sergeant Matiaco from a position at the County Jail to another position within the Association.  The record does not reflect the specific reasons for this demotion but suggests that it was a disciplinary action for conduct serious enough that many members of the Association felt it should have ended in termination.  (Ex. 4.J.)  Wayne Dykes, President of the Association, testified that he discussed Matiaco’s seniority status with Matiaco’s superior, Lt. Gordon Williams, and they agreed that Matiaco would return to the bargaining unit with no credit for prior seniority in positions within the unit. 

Sheriff Daniel followed up with an e-mail on April 13, 2002, that “Due to Article 13.2 [of the Contract], Deputy Matiaco goes to the bottom of the seniority list in the Deputy classification.”(Ex. 5)  Neither party called Lt. Williams as a witness.  Lt. Brian Anderson, whose duties included oversight of seniority issues, testified that he understood that a returnee to the Association would be credited with his or her “classification seniority” but had never needed to address the issue of prior “office seniority.”  

On June 13th Sheriff Daniel restored Matiaco to his earlier seniority as a deputy. (Ex. 4e)  He based this decision in part on advice from the Human Resources Director, who advised him in a comprehensive memo of June 12th that addressed several issues raised by the impending budget driven reduction in force on July 1st.  Among other things the memo addressed the “[Association’s] belief that Sergeants do not have Association seniority once they are promoted out of the bargaining unit.”  The memo stressed that “This issue has not been tested in a lay off situation.”[4] (Ex. 4E)  

Each of these personnel actions arose in unusual circumstances and none of them triggered action by the County affecting “frozen” seniority.  I cannot, therefore, conclude that they demonstrate a consistent and continuous pattern of conduct by the parties that would aid in construing the layoff and seniority provisions of the Contract contrary to their plain language.

             C.  Bargaining history. 

 The parties proposed numerous changes to much of the contract language in the interest arbitration over a new contract in 1993.

The 1987-1989 contract linked bumping rights in the event of a layoff to seniority in the bumping employee’s “operational unit.”  In the 1990-1992 contract, the “operational unit” limitation was removed and language identical to the current “Layoff and Recall” provision, Article 14.1, came into use. (Compare Ex. 16 [1990-1992 Contract], Section 8.5(c))[5].  In negotiating the 1993-1994 contract, however, the parties were far apart on many terms and finally went to interest arbitration before Arbitrator Roger Buchanan.

Echoing the issue raised in this case, the Association proposed to continue the layoff language of the earlier contract, but to add language in the forerunner of current Article 13.4 regarding “”Breaks in Seniority” as follows:

When an employee is promoted to a position outside the bargaining unit and later returns to the bargaining unit, the employee’s previous classification seniority shall be frozen, but shall not continue to accrue while the employee is no longer in the bargaining unit.  (Ex. 17, p 13.)

At the same time the Association proposed to continue without change the “Layoff and Recall” language of the 1990-1992 contract. (Ex. 17, p. 14.) In its post-arbitration brief before Arbitrator Buchanan the Association argued that new language in the section on “Breaks in Seniority” was needed as “clean up” but not as a substantive change in the Contract’s seniority provisions:

 . . .  There is no express language in the Contract that deals with seniority when an employee leaves the bargaining unit.  The Association’s proposal is that seniority be frozen. . . Arguably, when the employee returns to their bargaining unit, the employee’s seniority could not even exist.  Therefore, the Association’s proposal is to clean up an area where there is no existing language.  The County has yet to address it on the merits. (Ex. 20, pp. 36-37.)

However, the Association’s proposed new language, that “classification seniority” “shall not continue to accrue while the employee is no longer in the bargaining unit” was redundant.  By definition in the Contract, an employee’s “classification seniority” ceases to continue accruing after he or she leaves a classification for whatever reason.

             The County’s post-hearing brief in the 1993 interest arbitration brushed off the Association’s proposed new language for the “Breaks in Seniority” section, saying only that “The union presented no evidence in support of this proposal. . .”    (Ex. 19, p. 37.)  Arbitrator Buchanan agreed with the County and ruled that “The Association has not made a sufficient showing for a need for this proposed change.” (Ex. 21, p. 16)  This ruling is not further explained. 

             The County’s initial proposal also addressed “frozen” seniority and was in substantive agreement with the Association’s position.  But it proposed that the clarifying language be added to the “Layoff and Recall” section rather than the “Breaks in Seniority” section:

 . . . In a layoff or reduction in class situation, all employees, including employees who have been promoted or transferred to positions outside of the bargaining unit, shall only be entitled to bump back to lower job classifications in which they have previously accrued seniority, in which they can perform the duties of the classification, and when they have greater Office Seniority than the employee to be bumped. . .(Ex. 32, p.4) (Italics added.)

With respect to the Association’s objection to including the County’s language in the Layoff and Recall section, the County argued the same position that it advances in this arbitration:

. . . The Union claims that deputies currently do not have the right to bump back into the bargaining unit once they have been promoted out of the unit.  However, that argument is simply incorrect and ignores the express language of section 8.5(c) [predecessor to current Article 14.1] of the existing contract which allows bumping on the basis of ‘office seniority,’ provided employees have spent time in classifications to which they are bumping back.  The County explained that this is consistent with other union contracts covering its employees. . . (Ex. 19, pp. 41-42)

Regarding the County’s new language in the “Layoff and recall” section, the Arbitrator ruled that the language of the prior contract (identical to the current Contract) should remain unchanged but be moved to a new section.  His precise ruling on this section:

The County’s proposal and the Association’s proposal seem to differ only in the order in which they are stated and in minor wording changes. . .Accordingly, it is the Award of the Arbitrator that the new provision (separated from old contract Article 8 – Seniority) Layoff and Recall shall be the language proposed by the Association.  (Ex. 21. p. 19) 

The Association now contends that by rejecting the County’s amended language in the “Layoff and Recall” section the Arbitrator rejected language that would have “frozen” seniority of employees who promoted out of the bargaining unit. 

             There are at least two possible interpretations of Arbitrator Buchanan’s ruling on these proposed modifications to the contract language.  The County argues that he simply regarded the Association’s proposal as an unnecessary addition to the existing “Breaks in Seniority” provision.  The Association argues that Arbitrator Buchanan was mistaken regarding “minor” differences in their positions on the “Layoff and Recall” article and that the Arbitrator expressly rejected the County’s substantive position on “frozen” seniority.  It follows, the Association argues, that rejection of the County’s added language in the “Layoff and Recall” section amounts to an implied ruling that promotion out of the bargaining unit would cause total forfeiture of seniority accumulated in positions within the unit.

             It does not follow that the Arbitrator’s having declined to adopt new language in a settled provision that is otherwise clear constituted an affirmative finding that the substantive effect of the new language was wrong. It is an equally likely interpretation of his ruling that he agreed with the County respecting the Association’s new proposal in the “Breaks in Seniority” article--that it was unnecessary.  His having declined to add new language on an issue as momentous as seniority in a conclusory one-sentence ruling--without further discussion of the merits--is too thin a reed on which to hang a major reading of the Contract contrary to its plain terms, particularly with respect to a right so important as seniority.

             The interest arbitration decision was almost a decade ago.  There is no evidence in this record that during the intervening nine years the parties consistently and unquestionably treated employees who had acquired seniority in the bargaining unit, promoted out of the unit, and then returned to the unit, as having forfeited their seniority.

             The evidence is that historically the demotion of sergeants for budget reasons was without precedent.  Kevin Michael, a   27-year veteran of the Sheriff’s Office, could recall no such circumstance.  Daniel Calvert, who had been Under-Sheriff from 1986 to 1992 and Sheriff from 1992 to 1999, testified that the layoff of sergeants for budget reasons was a step he would not have taken during his thirteen years in senior management positions in the Sheriff’s Office.      

V.  Conclusion

 The Association contends that “the Contract is clear on its face that it does not apply to anyone but bargaining unit members.”  This goes too far.  Its implicit premise is flawed--that the Contract only confers rights on employees in the bargaining unit at the time the Contract is negotiated.  

 The premise conflicts with the plain language of Article 1.1 regarding recognition of “the Association as the sole and exclusive bargaining agent for the purpose of ‘employment relations’ for all employees in the Josephine County Sheriff’s Office. . .”  While sergeants and certain other classifications are excluded from the bargaining unit by Article 1.2, they enjoy the benefits of the Contract when they enter the bargaining unit as persons subject to “ ’employment relations’ ” for all employees in the Sheriff’s Office.”  

Furthermore, the Association’s premise is inconsistent with the facts at the time the current contract was negotiated.  While Sergeant Clarke was promoted to sergeant two months and Huffman 17 months before the effective date of the current contract, Sergeant Michael was promoted to sergeant two months after the effective date of the contract.  When the Association negotiated the current contract, it represented the future Sergeant Michael as an Association member.  Finally, as the above history of the Association’s position during the 1993 interest arbitration demonstrates, the Association did act to represent the rights of employees who promote out of the unit and later return to the unit. 

             Equally compelling is the County’s contention that the Association’s position would have serious consequences for the   the Sheriff’s Office’s ability to deliver law enforcement services to the community.  It would discourage experienced members of the Association from accepting promotion to supervisory positions out of the unit.  It is beyond dispute that local governments are constantly dealing with budget shortfalls, particularly counties such as Josephine County that historically received revenue from O&C lands.  Former Sheriff Calvert testified that funding the Office was a constant concern during his thirteen years as Under-Sheriff and Sheriff. 

If a member of the Association knew that he or she would forfeit many years of seniority and resulting job security for a slight increase in pay, a prudent member would decline a promotion in order to remain in the unit to assure job security in the event of future budget shortfalls and layoffs.  The Sheriff’s Office would be deprived then of much of its seasoned employees’ skills and experience in pursuing the Office’s mission. 

             Secondly, the practical effect of the Association’s position would be to hamper the Sheriff’s discretion in managing the office.  In effect, demoting sergeants for budgetary reasons would result in loss of their accumulated experience.  In the present case, if the Association’s position were to prevail, the Sheriff’s personnel changes to meet the budget shortfall on July 1, 2002, would result in either more layoffs in lower paid positions within the unit, or the loss of Sergeants Clarke’s, Michael’s and Huffman’s more than 40 years’ accumulated experience and the reinstatement of the laid off deputies with less than 4 years’ aggregate experience.

             Next, there is the troubling issue of how the County and the current Sheriff would deal with the three demoted sergeants’ positions if the Association’s argument were to be prevail in this arbitration.  The Association requests reinstatement of the laid off deputies.  That remedy would only follow from an award that placed the demoted sergeants at the bottom of the seniority list and probably would result in their being laid off.  In that event, given their significant experience in the Sheriff’s Office, the Sheriff would be faced with the difficult decision to reinstate them as sergeants and find budget savings elsewhere in his office, including a greater layoff of lower paid positions within the Association.  Such a result would seriously implicate the broad managements rights set forth in Article 2 of the Contract, quite independently of its adverse effect on other members of the Association.

             Seniority and its effect on job security is one of the most important questions in any public employee bargaining proceedings. Almost universally, courts and arbitrators have treated it as a unique issue in light of its effect on job security, promotion, pay scales, vacation and shift selection priorities, and other working conditions.  Some courts have held that it is a “vested” property right.  I need not decide in this arbitration whether seniority is a “property right” under the current contract.  But it is clear that given its importance the issue would have taken center stage in contract negotiations, both for the employer and the employee organization.  Indeed, every contract the parties put in evidence in this arbitration, going back almost 15 years, prominently addressed the issues of seniority in layoff circumstances.

I find in this case that the Association’s position respecting seniority, based on three exceptional personnel actions in 1986, 1999 and 2000, is unpersuasive in construing the Contract contrary to its plain language.  Similarly, Arbitrator Buchanan’s rulings on certain language proposed by both parties in the interest arbitration for the 1993-1994 contract is ambiguous at best.  Accordingly, that evidence is insufficient to satisfy the requirement of a continuous, clear history of explicit conduct by the parties that is contrary to the plain language of the Contract respecting seniority and layoff.

VI.  The Award

1.  The grievance filed on or about July 1, 2002 by the Josephine County Sheriff’s Association concerning the interpretation of Articles 13.2, 13.4 and 14.1 of the Collective Bargaining Agreement between the Association and the Board of Commissioners of Josephine County covering the period June 1, 1999 through June 30, 2993 and requesting, retroactive to July 1, 2002, that Deputies Hobart, Adcock and Meyer be reinstated from layoff and awarded back pay, and that Deputy Heller be reinstated in a Corporal classification, is denied. 

2.  The Association is “the losing party” and shall bear the arbitrator’s fees and expenses, pursuant to Article 17.2 of the Contract.

 

 

Dated:  October 15, 2002                                                      By:_s/dep_________________
                                                                                                       
    David E. Pesonen
                                      
                                                                     Arbitrator

 

[1] The actual “bumping”sequence is set forth in 33 of the parties’ Stipulation of Facts dated September 9, 2002, as follows:  Sergeant Clarke (with approximately 17 years of prior service in positions within the Association) “bumped” Corporal Joel Heller; Heller, in turn, “bumped” deputy Larry Adcock (who had less than one year seniority), causing Adcock to be laid off.  Sergeant Michael (with approximately 12 years prior service within the Association) bumped Deputy Hank Hobart (who had less than one year seniority), causing Hobart to be laid off.  Sergeant Huffman (with about 11 years prior service in positions within the Association) “bumped” Detective Michael Vorberg (who had about 2-1/2 years seniority); Vorberg in turn “bumped” Deputy Vernon Meyer (who had about 16 months’ seniority), causing Meyer to be laid off; however, because, from July 1, 2002 at least until the date of the arbitration hearing in this matter, Huffman was out on a Workers’ Compensation claim, Vorberg  retained his prior positions pending Huffman’s return to duty.

[2] The statement of grievance initially also requested that certain other Association members be compensated for lost outside income caused by their shift changes as a result of reduced seniority, but this part of the grievance was dropped at the arbitration hearing.

[3] Ms. Lasater’s personnel records were not available at the time of the hearing but were later produced to the parties and appended to their post-hearing briefs.

[4] This memo also asserted in this context that “An earlier Sergeant was given their previous bargaining unit seniority by the Sheriff’s Department when they returned to a covered bargaining unit position.”  However, the specific personnel action referred to is not further identified in the memo and the Director was not questioned on the point at this hearing, so it is not possible to determine from this record the basis for this statement.

[5] The only difference is the addition to the current contract of a sentence that cross-references Section 13.2 of the current contract regarding “types of seniority.” 

   

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