A New Challenge In Collective Bargaining: Administrative Shift Bidding

It is common practice throughout the state for law enforcement personnel to select their regular shifts on an annual basis, with the most senior members having priority in selecting their desired shifts. This process of shift bidding rewards experienced officers by enabling them to select their desired days and work hours, thereby allowing them to meet any number of concerns, including family commitments, religious beliefs, economic concerns (particularly where collective bargaining agreements provide for employees to receive a shift differential) and personal preferences. While less experienced officers may be required to make temporary accommodations in order to make themselves available during their scheduled shift assignments, they can rest assured knowing that a commitment to their department will soon reward them with the opportunity to select a more desirable shift. Perhaps most importantly, seniority-based shift bidding ensures a fair, predictable and straightforward process.

Although most employers recognize the innumerable benefits of seniority-based shift bidding, the concept of administrative shift bidding (or, more appropriately, “administratively-ordered shift assignments”) has presented an emerging challenge to associations across the state. While some administrators have identified reasonable concerns sought to be addressed by the proposed administrative shift bidding, others appear to simply seek new means to expand their control over every aspect of the workplace. As shift changes and the benefits associated with seniority are undoubtedly subjects of bargaining under the Meyers-Milias-Brown Act (Government Code section 3500 et seq.), association representatives should be prepared to engage in this discussion and address this emerging trend.

As with any proposal modifying an established past practice, the first question from the association should always consist of one word: Why? While some employers may have legitimate concerns — namely the risk of having entire shifts comprised of inexperienced officers and newly promoted supervisors — others may simply wish to micro-manage the department. For agencies that have not hired new officers in recent years, have threatened layoffs, or worse yet, have commenced layoffs, concerns associated with inexperienced officers may prove unpersuasive. Moreover, for those agencies with a long-standing past practice of seniority-based shift bidding, ask the employer to identify instances where the stated concern has actually resulted in otherwise avoidable experiences. As with negotiations relating to compensation and benefits, negotiations relating to shift bidding should also have a foundation in fact. Before the association can consider a solution, require that the employer first identify a genuine problem.

Although few associations would ever seriously consider the possibility of a true administrative shift bid process, for those experiencing pressure from the employer at the bargaining table, it is worth asking if the employer has considered the possibility of unintended consequences. While the employer may have considered administrative shift bidding to be the solution to their concerns (and the benefits of increased authority), they likely have not given full consideration to the impact of their proposal.

Eliminating seniority-based shift bidding will place an extraordinary burden on administrators, as every assignment will require justification and a well-reasoned explanation. Failure on the part of the administration to give each assignment such consideration will likely subject the department to a continuous series of legal challenges. By eliminating the traditional, successful, fair, unambiguous and unquestionably reasonable seniority-based scheduling model, members may reasonably believe that undesirable assignments are the result of discrimination or retaliation, while others will likely assert that a change in assignment is disciplinary in nature. More than simply creating a legal nightmare for the department, a pure administrative shift-bid process would likely have the practical consequence of decimating department morale. By imposing shift assignments, the department could unknowingly interfere with family traditions, religious practices, child care arrangements, legal obligations and household finances; negatively impact on-duty performance and professional relationships; unintentionally compromise officers’ off-duty commitments; and unwittingly impact countless other personal matters that are contingent upon an officer’s schedule.

While associations that have a seniority-based shift bid process set forth in their collective bargaining agreements are protected against the possibility of an administrative shift bidding process during the term of their agreement, others should be ready to consider a host of options should the employer propose such a concept. First and foremost, associations should be prepared to assert their rights pursuant to an existing past practice. Associations unable to assert a past practice should consider options that limit administrative shift bidding to satisfy a narrow, clearly articulated, administrative concern. To that end, some associations have agreed to mandatory shift rotations whereby members cannot remain on the same shift for more than two years. Others have allocated a predetermined number of assignments for members presenting particular needs. Whatever the department’s particular need may be, there are much more reasonable accommodations that can be made in lieu of a pure administrative shift bidding process.

Peter Hoffmann is an associate in the firm’s Collective Bargaining Practice Group. He regularly assists labor associations with contract negotiations, grievances and related legal matters. Peter has successfully litigated a number of large-scale actions under the Fair Labor Standards Act. He has also represented individual peace officers in disciplinary appeals and critical incidents.