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Arbitrator Upholds Overtime Pay for Supplemental Law Enforcement Events in Monterey County

Posted on Wednesday, October 01, 2014 at 12:00AM

ISAAC S. STEVENS

Associate
Mastagni Holstedt, APC

     The Monterey County Deputy Sheriffs’ Association (MCDSA) obtained an important arbitration securing its members’ right to take paid leave to work overtime at supplemental law enforcement events. Arbitrator Andrea Knapp ruled that the County of Monterey was obligated to pay MCDSA members overtime for time they spent working shifts at such events when they took paid leave to work them.
     For years, the County allowed deputies to use vacation or other paid leave to take their regularly scheduled shifts off and work overtime at supplemental law enforcement events, such as the AT&T Pro-Am golf tournament at Pebble Beach or races at the Laguna Speedway. The County benefited from this practice because it provided MCDSA members with an incentive to work such shifts.
     Shortly after the 2012 AT&T Pro-Am, the County announced that deputies were not allowed to take leave to work supplemental law enforcement events. Several deputies took paid leave to work the Pro-Am for overtime before the County announced that it was terminating the practice. The County credited the paid leave they took to work the events back to their leave banks, and paid them at the straight-time rate for the hours they worked at the Pro-Am.
     The MCDSA and several of the affected deputies, represented by Mastagni Holstedt, filed grievances alleging that the deputies had a contractual right to take time off to work overtime at the Pro-Am. The County denied the grievances, claiming that nothing in the MCDSA’s contract allowed deputies to take vacation and work supplemental law enforcement events for overtime. The County also claimed that it was unaware of the practice until 2011, and that it terminated the practice immediately. The County said that paychecks showing that the County paid deputies at the straight-time rate for hours they worked the 2011 Pro-Am put the MCDSA on notice that the County had terminated the practice.
     The parties arbitrated the matter during a two-day hearing. At the outset, the County’s attorney accused the deputies of stealing and breaching the public trust by taking vacation to work at the Pro-Am tournament. The County also claimed there was no past practice of allowing deputies to take paid leave to work overtime at such events, because it was unaware of it until 2011.
     Mastagni Holstedt attorney Isaac Stevens forced the County’s witnesses to admit that the County had always allowed deputies to take paid leave to work supplemental overtime events. Under cross-examination, the Sheriff’s Acting Deputy Chief for Administration admitted that the practice benefitted the Sheriff’s Office by encouraging deputies to work supplemental law enforcement shifts. County witnesses also conceded that the County never notified the MCDSA’s leadership that it was eliminating the practice in 2011.
     Arbitrator Knapp sustained the MCDSA’s grievance, ruling that the “zipper clause” in the MCDSA’s contract required the County to maintain its longstanding practice of allowing deputies to take paid leave to work supplemental law enforcement events. The “zipper clause” stated that existing benefits that were not referenced in the contract and were subject to the meet and confer process “shall continue without change unless modified subject to the meet and confer process.” Arbitrator Knapp found that a past practice existed allowing deputies to take paid leave to work the supplemental law enforcement events.
     The arbitrator also held that the County did not eliminate its past practice in 2011, finding that there was no evidence that the County gave the MCDSA notice of its intent to terminate the practice. The arbitrator rejected the County’s claim that the deputies’ wage statements in 2011 constituted notice to the MCDSA. According to the arbitrator, “it would have been impossible for a deputy to tell from his wage statement [that the County] had terminated a longstanding past practice.”
     The arbitrator found that, because the County had not effectively terminated its practice of allowing deputies to take paid leave to work overtime at supplemental law enforcement events, it was an “existing benefit” that could not be changed unless modified through the meet and confer process. As a result, the arbitrator ordered the County to make the deputies whole by paying them for their vacation hours and the hours they worked at the Pro-Am.

About the Author
Isaac Stevens is an associate attorney in the Labor Department of Mastagni Holstedt, APC, where he represents labor associations and their members in complex litigation. He represented the Monterey County Deputy Sheriffs’ Association in this matter. 
 

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