Arbitrator Rules Yolo Court Deputies May Schedule Days Off At Their Discretion

In late 2004, Yolo County was determined to balance its budget on the backs of its employees by implementing an across-the-board furlough. The Deputy Sheriffs Association (DSA), however, was in the middle of a contract with the County which did not expressly permit furloughs and which contained a full modification and waiver (“zipper”) clause. The DSA filed a grievance, which ended up in arbitration, alleging that its zipper clause prohibited the imposition of furloughs without the DSA’s consent. The Arbitrator agreed, concluding that since the parties waived their rights to negotiate during the contract over matters within the scope of bargaining, the County waived its right to impose any changes, including furloughs, during the term of the contract.

With that background, the County was again experiencing a budget shortfall in 2009 when it approached the DSA in an effort to gain concessions and ease the County’s financial burden. Ultimately, the DSA agreed to furloughs in an effort to mitigate the County’s financial shortfall. As part of the DSA’s concession, however, it insisted (and the County agreed) on language that guaranteed that furlough time “[would] be taken at the discretion of the member in compliance with the policies and procedures of the affected Department for the scheduling of compensatory time off.”

Once the furloughs were instituted, the Department forced the Deputies to schedule their furloughs by seniority and apply a rule (which only applied to the Courts) that no more than two Deputies could be off at any one time, a process that previously applied only to vacation sign-ups. This forced Court Deputies of lower seniority to choose the days that were left over by the more senior Deputies and denied them discretion in choosing their preferred days. Deputies were forced to choose these days (even if they did not want to use them) since any remaining furlough time would be forfeited and could not be cashed out at the end of the year.

When the County came to the DSA in 2010 looking for additional concessions, the DSA wanted to ensure that if it agreed to help the County achieve its necessary savings (again), the Department would not deny the DSA’s members’ preferred choices for days off. The parties agreed that in exchange for the Deputies picking up 7% of their PERS contribution for the term of the contract, sunsetting in June 2011 (under the MOU at the time, the County was required to pay the full 9%), DSA-represented employees would be credited with 104 hours of personal time off (PTO). The parties also agreed to a salary survey in September 2010, to be implemented effective July 1, 2010, for any increases in the average for comparable agencies. This resulted in a 4.6% pay increase.

Under the side letter, PTO was to be used in the same manner as furloughs. Since furloughs were supposed to be scheduled in the same manner as compensatory time off (CTO), the DSA and the County agreed to amend the section regarding CTO to add “… and shall not be denied based upon the cost of backfilling to maintain staffing levels.” DSA members voted to approve the PERS concession based on the assumption that they would accrue the additional PTO and be able to have their preferred days off when using their PTO.

Once the side letter went into effect, the Department almost immediately began to violate the agreement by ordering Deputies in the Courts to exhaust their newly acquired PTO before any other leave time was used. The Department even went so far as to substitute PTO for the requested leave if leave time other than PTO was submitted. Since the vacation sign-up schedule had already been circulated, Deputies were forced to use PTO to cover scheduled vacations.

Since the time frame for requesting PTO is more flexible than that of vacation, PTO has more “value” and the Deputies are significantly disadvantaged by being required to utilize the PTO in a manner other than that which was contemplated in the side letter. The MOU requires that a request to use vacation cannot be unreasonably denied if it is made 30 days in advance. With PTO, one would have to submit an absence request slip only two work shifts prior to one’s desired day off.

After multiple attempts to resolve the matter informally, the DSA chose to grieve the matter to arbitration. The DSA successfully showed that Deputies in the Courts had applied for PTO (some more than 60 days in advance) and had been denied that time based solely on the fact that two other Deputies had already requested the day off. Arbitrator William Riker concluded that “PTO has the same level of schedule flexibility as the CTO and should not be denied based on similar challenges to backfilling staffing gaps.” The County was ordered to immediately implement the provisions of the PTO side letter agreement and stop denying time based on the cost of backfilling.

About The Authors

Gary M. Messing, a Labor Partner in Carroll, Burdick & McDonough’s Sacramento office, and Labor Representative Brian Parino represented the Yolo DSA in this matter. Gary has been representing peace officers and their associations for 35 years, while Brian is one of the newest members of the CB&M team with approximately three years of experience representing peace officers and their associations.