Since 2004, police officers assigned to the City of Columbus, Ohio Division of Police Vice Unit have worked a schedule with Thursday and Friday off. When a deputy chief learned of the schedule in 2008, he ordered that the Unit be returned to its previous schedule, which had Tuesday and Wednesday off. The Fraternal Order of Police (FOP), representing officers in the Division, challenged the order in arbitration.
An arbitrator upheld the grievance. The Arbitrator started with the proposition that the FOP bore the burden of proving the existence of the binding past practice. The Arbitrator noted that a past practice must be (1) unequivocal, (2) clearly enunciated, and (3) followed for a reasonable period of time as a fixed and established practice by both parties. The Arbitrator also commented that “for a past practice to be entitled to be recognized as a part of the Agreement, it is necessary that there be obvious evidence of some mutual understanding, though not necessarily acquiescence, of its occurrence. Past practices cannot become part of the fabric of an agreement if only one party is aware of it, and on that basis alone asserts that the practice is protected by the Agreement.”
The Arbitrator concluded that the FOP met this burden of proof. The Arbitrator found that the roughly three-and-a-half-year period of time the schedule was in place was sufficiently long to establish a past practice. Since the days off of the unit never varied from Thursday and Friday during that period of time, the Arbitrator also found that the past practice was unequivocal. Important in the Arbitrator’s decision was that several vacancies in the vice unit were filled over the period of time that the schedule was in place, and that employees taking vacant positions made “life changes” in order to accommodate the schedule.
The City argued that no past practice could be binding unless the Police Chief was aware of it. The Arbitrator disagreed, holding that “some past practices that are entitled to contractual recognition because there is mutual acceptance do not require that everyone in the chain of command know of and accept the practice. No past practice can result from the choice of actions of a small group and their immediate supervisor or foreman, counter to the behavior of the larger workforce, that could not be contemplated by a governing contract. And that is not the case here. In this dispute mutual acceptance requires that a responsible representative of the City know of the practice, accept it, and regard it as the standard. The Vice Unit’s lieutenant satisfies each of those requirements, and its sergeant may also. Nothing requires that the practice also be known and accepted throughout the entire chain of command, nor that it be known by other City officials.”
City of Columbus, Ohio, HK ARB NO. 80714 (Kasper, 2009).
This article appears in the February 2010 issue