Sheriff Officers Assn. Inc. v County of Nassau

[*1] Sheriff Officers Assn. Inc. v County of Nassau 2008 NY Slip Op 52288(U) [21 Misc 3d 1130(A)] Decided on October 7, 2008 Supreme Court, Nassau County McCarty, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 7, 2008
Supreme Court, Nassau County

Sheriff Officers Association Inc., Plaintiff(s)

against

The County of Nassau, Defendant(s)



5403/07

Edward W. McCarty, J.

Motion (#001) by plaintiff for an order pursuant to CPLR 3212 granting summary judgment in favor of plaintiff against defendant and setting the matter down for an inquest on damages, and cross motion (#002) by defendant for an order pursuant to CPLR 3212 granting summary judgment to defendant dismissing the complaint, are decided as set forth herein.

Plaintiff labor union represents the correction officers employed by the Nassau County Sheriff's Department. There is a collective bargaining agreement (hereinafter, "the Agreement") between plaintiff and defendant effective January 1, 1998 to the present:

Section 23.1 of the Agreement provides that:

"A County employee, at least one half of whose shift is between 4:00 p.m. and 8:00 a.m. shall receive additional shift differential for each hour actually worked, regardless of whether such hours are between 4:00 p.m. and 8:00 a.m."

Plaintiff interprets this provision of the Agreement to mean that defendant is obligated to pay plaintiff's members shift differential when they work at least four hours on a second shift either immediately before or after working the 8:00 a.m. to 4:00 p.m. shift.

Plaintiff alleges that beginning about 2002, defendant required plaintiff's members to work at least seven hours on a second shift either immediately before or after working the 8:00 a.m. to 4:00 p.m. shift, in order to qualify for shift differential. [*2]

On or about April 1, 2005, plaintiff filed a grievance pursuant to Section 20 of the Agreement. A hearing on such grievance was held on October 25, 2006. On December 31, 2006, the arbitrator found that plaintiff's members who work at least four hours on a second shift either immediately before or after working the 8:00 a.m. - 4:00 p.m. shift are entitled to payment of shift differential for those hours actually worked on the second shift.

By letter dated February 9, 2007, defendant rejected the arbitrator's advisory arbitration award.

Defendant only pays shift differential to plaintiff's members after they work at least seven hours on a second shift either immediately before or after working the 8:00 a.m. to 4:00 p.m. shift.

Defendant concedes that plaintiff has exhausted all administrative remedies.

On March 29, 2007, plaintiff commenced this action seeking: (1) a declaration that defendant has breached and continues to breach Section 23.1 of the Agreement; (2) an order requiring defendant to comply with Section 23.1 of the Agreement retroactive to April 2001; (3) attorneys' fees and costs; and (4) for such relief as this Court deems just and proper.

Plaintiff now moves for summary judgment on liability and defendant cross moves for summary judgment dismissing the complaint.

The disposition of the parties' respective motions for summary judgment turns on the interpretation of Section 23.1 of the Agreement.

Defendant County's interpretation of Section 23.1 of the Agreement, that plaintiff's members are not entitled to shift differential pay unless they work at least seven hours before or after the 8:00 a.m. to 4:00 p.m. shift, is unsupported by the plain language of the Agreement when taken as a whole. Moreover, defendant could have modified the language of the Agreement during negotiations to support its position on payment of shift differential, but failed to do so. (See, Civil Service Employees Association, Inc. v Plainedge Union Free School District, 12 AD3d 395, 396.)

Defendant County's argument that plaintiff is bound by a 1992 shift differential settlement agreement between plaintiff's predecessor and defendant is without merit. The fact that such settlement agreement does not refer to the 8:00 a.m. to 4:00 p.m. shift does not imply that plaintiff's members who work such shifts are excluded from receiving shift differential pay. In fact, such interpretation of the settlement agreement would be inconsistent with defendant County's payment of shift differential to plaintiff's members who work the 8:00 a.m. to 4:00 p.m. shift, preceded by or followed by seven hours of work. Moreover, such 1992 settlement agreement expired upon the execution of the new Agreement in 1998. (See, Matter of Local 2841 of NY State Law Enforcement Officers Union, AFSCME, AFL-CIO (City of Albany), 53 [*3]AD3d 974, 976.) Therefore, the terms of the 1992 settlement agreement regarding shift differential are immaterial herein.

Giving plain meaning to the words of Section 23.1 of the Agreement, defendant County is required to pay shift differential to plaintiff's members who work at least four hours immediately before or after the 8:00 a.m. to 4:00 p.m. shift. Defendant County's failure to make such payments constitutes a breach of the Agreement.

Having found liability for defendant's breach of the Agreement, the Court now turns to the issue of the time period for which damages should be assessed.

Ordinarily an action for breach of contract is governed by a six year statute of limitations (See, CPLR 213(2)). However, parties may agree in writing to a shorter time period (See, CPLR 201).

Section 20-1 of the Agreement provides, in relevant part, that: "the President [of plaintiff union] may initiate a grievance... within one (1) calendar year after the occurrence of the event grieved, provided it does not merely affect an individual." Such a time limitation in the Agreement effectively shortens the statutory period set forth in CPLR 213(2) of six years, to one year with regard to class action grievances brought by the president of plaintiff union. Therefore, the period for which damages may be sought herein is from one year prior to the filing of the grievance, that is April 1, 2004, to present. (cf. Nassau Chapter Civil Service Employees Association, Local 830, AFSCME, Local 1000, AFL-CIO v County of Nassau, 154 Misc 2d 545, aff'd 203 AD2d 267.)

Motion granted and cross motion denied, as set forth herein.

Counsel for the parties are directed to proceed with discovery for the time period April 1, 2004 to present.

A conference shall be held in this matter on October 15, 2008, at 9:30 a.m. to set forth a schedule for any and all remaining discovery.

Upon completion of all discovery, a certification order shall be signed. Plaintiff may then serve and file a Note of Issue and a Notice of Inquest, along with a copy of this order so that this matter may be set down for inquest on the issue of damages.

Date__October 7, 2008_______________________________

J.S.C.