Past Practice Defines “Retirement” In Context Of Sick Leave Language

The collective bargaining agreement between Tinicum Township, Pennsylvania and the Tinicum Township Police Officers Association allows the conversion to cash of 50% of accumulated sick leave on “retirement.” The contract does not define the word “retirement.”

When a police officer who resigned before his normal retirement age sought the sick leave conversion benefit, the Township denied his request, taking the position that he had not “retired.” The Association challenged the Township’s denial in arbitration.

An arbitrator upheld the grievance. The Arbitrator cited two prior instances where the Township had cashed out the sick leave of resigning officers, as well as a third payment to a former chief of police. In the view of the Arbitrator, “although the Township argues that it was not aware that such payments were being made and, therefore, a binding past practice cannot be found, the record demonstrates that the Township should have been aware of the matter.” While ordinarily the Arbitrator would have concluded that only two prior instances would not be sufficient to establish a binding practice, he concluded that given the small size of the Department (five officers), the situation had only rarely occurred, and that “it is apparent that these occurrences do provide a basis for a finding of a past practice.”

Tinicum Township, Pennsylvania, LAIG 6374 (Skonier, 2006).

This article appears in the August 2006 issue