City Has Right To Rescind Take-Home Car Program

The Fraternal Order of Police (FOP) represents a bargaining unit popularly referred to as “the Gold Unit” made up of lieutenants and majors in the City of Marion, Ohio Police Department. There are approximately 17 employees in the bargaining unit. Four are majors and 13 are lieutenants.

In 2000, the Department decided to permit four majors and one lieutenant, all of whom were involved with investigative work, to utilize squad cars in their daily commute from their homes to the police station and vice versa. The gasoline and other expenses of the squad cars during these commutes were paid for by the Department. The basis for this decision was to facilitate these officers’ response to emergencies.

By March 2008, only three out of the five eligible employees were participating in the take-home program. The Department elected to terminate the program on the grounds that it would save the Department money with respect to gasoline purchases during a time of rapidly rising gasoline prices. The FOP challenged the Department’s decision by filing a grievance.

An arbitrator rejected the grievance. The Arbitrator noted that no clause in the contract specifically dealt with take-home vehicles. The Arbitrator commented that “the process which was followed in this case was that the take-home cars had their origin in a directive from the Safety-Service Director in the year 2000. No grievance was filed at the time contesting the use of this unilateral process or the conditions under which the take-home cars were to be made available. Pregnant in the use of this seemingly accepted unilateral process would be the assumption that the same unilateral process could be utilized to change the conditions under which the take-home cars were provided.”

In the eyes of the Arbitrator, the failure to include the take-home car benefit in the contract was telling. The Arbitrator observed that “there was formerly a clause in the parties’ agreement which required the maintenance of past practices. At the least, this bargaining history shows that there is no ‘past practice’ clause upon which the Union can rely in its assertion that the Department is required to continue to provide take-home cars. Beyond this there is perhaps a hypothesis that such clauses are usually considered to be favorable to unions and that they are often sought to be removed by Departments on that basis and that this is perhaps what happened in this case. From both aspects then there is at least a faint inference that the Department is not required in this case to maintain the take-home cars on a contractually required past practice basis.

“Here the establishment of the take-home vehicle program was entirely on the basis of a unilateral Department policy. It was thereafter subject to amendment or rescission by the same process. This is especially true in the absence of the past practice clause which had previously graced the parties’ agreement.”

City of Marion, 126 LA 212 (Fullmer, 2009).

This article appears in the June 2009 issue