by Dawn Morabe
This article may be a bit dry, but this is important for you to know.
A Labor Memorandum of Agreement (“MOA”), which is also known as a memorandum of understanding or collective bargaining agreement, is a binding contract setting out the agreement made between a labor organization and the employer appointing authority. The Deputy Sheriffs’ Association has two MOAs with the County of San Diego: the Deputy Sheriffs (DS) Unit and the Sheriff’s Management (SM) Unit. Both agreements have detailed provisions related to our rights, our working conditions, our pay, grievance procedures, association rights, and employee benefits. These agreements are available for review on the county website and the DSA website. Why is this important for you to know? Because these agreements are binding contracts that affect you.
A “past practice” is a longstanding, frequent practice that is accepted and known by both the association and management. The Public Employment Relations Board (PERB) provides the following definition: a binding past practice must not only be unequivocal and clearly enunciated, it must also be acted upon by the parties and “readily ascertainable over a reasonable period of time as a fixed and established practice accepted by both parties.” So, what does that mean? It means that by engaging in the past practice, it can be argued that the parties have agreed to the terms of that practice.
So, how does a past practice affect a MOA? If the MOA language is clear, it does not affect the MOA. If the MOA language is ambiguous, it can be used to establish what the language means. In essence it becomes an implied part of the MOA.
Let me use the following example. Our current MOA, Article 5, C, 1 and 2 discusses the accrual of NON-FLSA and FLSA Compensatory Time Off (CTO). The language reads that an employee has the option to accumulate a maximum of one hundred twenty (120) hours of FLSA compensatory time off. It further states that employees who have accumulated FLSA compensatory time off balances that reach one hundred twenty (120) hours, shall be paid cash only for overtime hours worked. The DSA believes the language is clear that all employees have the choice to apply up to 120 hours of their overtime to their FLSA CTO balance.
A past practice implies that both parties, the DSA and the County, knew and understood and accepted that certain overtime could only be compensated by cash and not by comp time. Members being told a particular overtime assignment is not covered by the MOA language or that you do not have a choice between FLSA compensatory time or cash for this particular overtime assignment, is not the DSA and the County entering into a mutual agreement willingly to exclude certain overtime assignments from the MOA provision. Individual members cannot agree to change the MOA except through negotiations between the DSA and the County.
Let me provide a disclaimer. I do not believe anyone has intentionally misled anyone. I do believe, however, that sometimes we do things because that is the way they have always been done, or because we are told that is the way they have always been done. It is our counsel’s position that not allowing an employee to accrue overtime hours worked in their FLSA CTO balance up to 120 hours is a valid grievance. We know the Department disagrees with that position. Most employees willingly choose to be paid in cash, but we have heard that some employees are being denied the ability to choose FLSA compensatory time for their overtime. If this has happened to you, we would like to understand the circumstances.
As always, we are here to support you and to ensure your rights are protected.