A Sheriff’s Office posted a highly coveted opening for a deputy on day shift in the road division. During the seven-day posting period, ten employees signed the posting, including one deputy who chose to resign his sergeant stripes in order to bid for the open deputy position. The former sergeant had the most seniority and was awarded the position. The Union grieved the award, arguing that the sergeant should not be permitted to resign his stripes during the posting period to compete against deputies (a separate bargaining unit) for the day shift position.

Referencing two specific instances when sergeants had given up their stripes to become deputies, the union argued that past practice established that a sergeant giving up his stripes takes whatever is left open after all deputies bid. The employer responded by arguing that the two instances cited by the union were insufficient to establish a binding past practice and that the contract language was clear and unambiguous. The arbitrator denied the grievance, finding that the language in the collective bargaining agreement was clear and unambiguous and that the union’s position would require the Arbitrator to insert modifying language which was not negotiated. The collective bargaining agreement did not include any requirement that a successful bidder be a member of the bargaining unit at the time a vacancy was posted. As the former sergeant was a bargaining unit member at the time the position was awarded, no contract violation occurred. For a copy of the decision or for any questions, please contact info@fishelhass.com.