By Anthony Rice
In Carlton County, the Union failed to prove its claim of a past practice in the Minnesota Sheriff’s Department of pairing one of the four most senior field deputies, with one of the four least senior field deputies when shift assignments are made. The County therefore did not violate the CBA when it paired the Grievant, one of the four most senior deputies, as the junior deputy to another of the four most senior deputies.
The Union asserted that it has been the County’s past practice to assign the four most senior field deputies to separate shifts and partner them with one of the four least senior deputies in the department. Thus, when it assigned the Grievant, one of the four most senior deputies, as a junior deputy, it violated this past practice. Being assigned as a junior deputy meant the Grievant lost out on overtime opportunities—which first go to the most senior deputies.
The first question the arbitrator had to answer was whether there was a binding past practice.
To be a binding past practice it must be shown that the practice has been clearly enunciated and acted upon; that the practice represents a consistent pattern of behavior over a lengthy period of time; that the practice is accepted by both parties as the correct and customary means of handling a situation, and that the practice is supported by mutuality. To assert a practice is not to make it so.
In this case, the Union asserted that that the County had, with one exception, consistently assigned the four most senior deputies as the senior deputy in each shift pairing since 2003. Moreover, the Union added that the single exception (an assignment of a senior deputy as a junior deputy in 2004 and 2005), is not relevant because the more senior deputy in that instance did not object to the assignment and did not desire overtime assignments. The arbitrator concluded otherwise, however:
The record shows that while the four most senior deputies were assigned as the senior deputy on each shift in 2005 and 2006 and have been since the grievance was filed in 2009, it also shows there were several times over the years since 2002 when this practice was not followed. Given this evidence, it cannot be concluded that the practice the Union alleges is a binding past practice is, in fact, a binding past practice.
