LEGAL UPDATE

BY:  LOUIS D. STOBER, JR.
Regional Attorney for CSEA

EQUAL DISTRIBUTION OF OVERTIME WIN FOR DEPUTY SHERIFFS

Under the terms of the Collective Bargaining Agreement between the CSEA and the County of Nassau, the County is required to, insofar as practicable, there shall be equal distribution of overtime among employees in a department who have the same job titles (Section 28-4.2).  When members of the Sheriff's Department learned that Deputy Sheriffs , Sergeants and Lieutenants assigned to the Family Court unit were receiving substantially more overtime than the rest of the employees in the same title, a class action grievance was filed.

When the advisory arbitrator denied the grievance, he placed the burden of showing practicability on the employees not the County.  Unsatisfied with the advisory arbitrator's rationale, CSEA commenced a breach of contract action against the County.

In a trial handled by Anthony P. Giustino of my office, Supreme Court Judge Daniel Palmieri held that the County had indeed violated the Collective Bargaining Agreement when it did not equally distribute overtime at the Family Court unit among all of the Deputy Sheriffs, Sergeants and Lieutenants.  Critical to this victory and for all future cases is Judge Palmieri's holding that the County bears the burden of proving that it is impracticable to equally distribute overtime in a department among employees holding the same title.  Judge Palmieri also held that it was NOT impracticable to equally distribute the Family Court overtime among the employees with one narrow exception regarding the Lieutenants.  Judge Palmieri held that "with respect to the day to day overtime that comes up by reason of job performance, things that go wrong in the day, things that happen I a day that would cause overtime, that the continuity of supervision and management is better-served by not going outside of the unit for overtime purposes" for Lieutenants.  However, Judge Palmieri held with respect to the Lieutenants that:  "I do not believe it is impracticable to go outside the unit for overtime coverage with respect to things such as scheduled leaves, vacations, absences that are leaves of absences, somebody going away for training.  This is not the kind of overtime that comes up on an emergency basis and must be quickly attended to… This is the kind of overtime that would arise no differently than if someone died, retired, got sick, or for some other reason there was a vacancy in the job and it had to be filled."

This case has now been set down for a trial on the issue of damages, that is, how much overtime each of the affected employees is entitled to.

What this case demonstrates is that under our CBA, the CSEA has options and can challenge an arbitrator's decision when it is clearly wrong.  Given that the award was advisory only, CSEA was able to pursue this case, successfully in the Courts.

If you believe you are the victim of unequal distribution of overtime in your department among employees holding the same title, contact the CSEA to file a grievance.   Do not wait because there is a limited statute of limitations for filing grievances under the CBA.