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S.Randall Weltman

Need for OPBA Representation? Know the Continuum

It has been a long time since a summary of representation responses has been provided to the OPBA’s membership.  Representation responses can be broken down into “levels” just like the use of force continuums that OPBA members should know all too well.

Different levels of management action require different levels of OPBA representation.  The management actions that are to be considered range from the casual conversation with a supervisor or investigator to either a criminal or internal investigation where the Miranda warnings are read.

As a general yet fundamental rule, whenever anyone reads a member their Miranda warnings that member must invoke their right to remain silent.  A member in this situation probably either already has an OPBA attorney present or has been in touch with one so this response may already be known but if not, always remain silent when given the opportunity.

Of course there are exceptions to every rule.  In some cases your OPBA attorney will advise you to waive Miranda and provide a statement.  This happens in many cases involving BCI investigations of police involved shootings.

The BCI is a law enforcement agency that is in business to investigate matters that are “criminal”, whether obviously so or even remotely so.  Thus all BCI investigations are necessarily criminal investigations and thus all of the statements that they take must be taken only after the waiving of Miranda.

Despite what the public may think, virtually all police involved shootings are good shoots, justified by the evidence in light of the use of force continuums.  In these cases there is no reason to reject the BCI’s request for a statement because of Miranda waiver fears.

Between the OPBA’s attorneys, the Department’s OPBA Reps and the shooter there is enough competency to assess and measure the quality of the shoot.  Once it is determined that the officer’s account will prevail at any level of review, then the waiving of Miranda becomes an appropriate response.

Short of this or another situation determined by an OPBA attorney that it makes sense to waive Miranda, Miranda should never be waived.   Management and/or the investigatory authority understands this.  Indeed they expect such a response because it is an intelligent response.  In any case your OPBA attorney can take the blame because invoking Miranda is a golden rule in best defending a criminal case.

Again, never waive your right against self incrimination unless you have been advised to do so.  You will not be stigmatized or blamed and you can always waive it later.

The Garrity warning is another management action that normally warrants the attention of an OPBA attorney.  Unlike Miranda, which is a constitutional right extended to everyone, the Garrity warning is a court created right that is granted to only police officers and other employees of a public law enforcement agency.  Garrity was created as a counter or protection against the public law enforcement agency’s awesome power to conduct internal investigations.

Law enforcement agencies are structured just like a military organization and are widely known as para-military organizations.  This type of organization is built on layers and divisions of authority.

Individuals who are empowered with authority possess the ability to order their subordinates to perform an act, such as to answer questions.  There are individuals in every law enforcement agency that can legally order any subordinate to participate in an internal investigation and to truthfully answer any question posed which relates to the subordinate’s work performance.

How can such an order be lawful when the U.S. constitution guarantees everyone the right against self incrimination?  How is it fair that in one instance your department safeguards and offers to you your constitutional right and then effectively negates that right with its ability to force you to truthfully answer questions?

Over the years the courts have resolved this dilemma by creating what has become known as the Garrity warning/right.  Garrity has evolved into a right to be invoked/provided in order to immunize or otherwise protect the answers to a compelled statement from being used in any subsequent criminal investigation and/or prosecution.

Garrity balances the needs of a para-military organization when it comes to gathering pertinent information pursuant to an internal investigation with the constitutional rights of a law enforcement officer.  Garrity is a crucial right but in some cases it can be abused by deceitful prosecutors and police administrators.

In most cases, OPBA members who are given the Garrity right have been in contact with an OPBA attorney.  If not there is every reason for which to get in contact with an OPBA attorney.

Virtually all instances where Garrity is issued occur pursuant to an internal investigation.  While all non-criminal investigations are “internal” investigations, an internal investigation  is a term of art describing an investigation that is formal or official and normally directed at a “subject” or a “target”.

In Ohio, there is an established “right to counsel” for any target or any witness questioned pursuant to an internal investigation performed by a police department.  Any witness or subject of an internal investigation can delay their interrogation until they can arrange for counsel to attend (subject to a reasonable amount of time, of course). As such it is suggested that before entering into any statement where Garrity has been cited that the member contact an OPBA attorney for advice and/or attendance at the interrogation.

OPBA representation is also appropriate during any other questioning by a supervisory authority where you, the employee, feel that an outcome of your questioning will be the issuance of discipline.  In these situations it is the employee’s obligation to request the presence of an OPBA representative.

If such a request is made the questioning officer is to stop and allow you to secure union representation.  Unless this questioning is pursuant to an internal investigation you are only allowed to interrupt until a local OPBA Representative, and not an OPBA attorney, can be present.

It is not always clear when this kind of request for representation is proper.  This is because it is not known what the questions will be about or whether they are of consequence.  Situations that start off innocent may turn adversarial but keep in mind that at any time the questioning can be, and should be, stopped until representation arrives.

We do know that the discipline that must be feared can not be a simple “word to the wise” or a counseling or coaching, it has to be true discipline from oral reprimand on up.  And we know that the fear of being disciplined is a subjective fear, unique to the individual.  So if these elements are present at any time be sure to request union representation.

If a request for union representation is made during a questioning session and the questioner does not stop, an unfair labor practice has been committed.  The remedy for such a ULP will likely be the vacation of any discipline that was issued, so it makes sense to err in favor of requesting representation, even when you are not sure.

As with the use of force continuum the movement from one level of response to the other is not always clear-cut.  This is why it makes sense to know the continuum of the need for OPBA  representation and in all instances of doubt call the OPBA for guidance and answers.


Striving for Perfect Objectivity in the World of Police Promotions

Lately I have been handling several matters involving the issue of promotions, which is unusual.  I do believe however, that there is a sound explanation for the increased frequency of promotion related inquiries that make up my work docket.

Ever since the financial crisis there have been many ranking positions eliminated by many managements.  The ability of managements to “abolish” or otherwise eliminate promoted positions is practically as awesome as all of the most fundamental of management rights.

As many of you have discovered, abolishment of supervisory positions is permissible so long as the employer can demonstrate that its actions are driven by “economy and efficiency”.  Unfortunately for the employee, the ability to successfully appeal an abolishment is difficult to impossible given that such appeals are decided by the civil service commissions that are so intricately linked to the employer.

Undoubtedly over the last 5-7 years the opportunities for promotion in virtually every OPBA police department have become more scarce.  At the same time, as DROP dates began to occur, there has been a steady stream of newly hired patrol officers.

This presents a situation where the number of officers interested and anxious to participate in the promotional process is on the rise while the number of available opportunities is dropping.  This results in a supply/demand imbalance making each opportunity much more precious and valuable than under normal circumstances.

Another explanation, also with roots in the financial crisis, is the money necessarily associated and attached to each promoted position.  Rank differentials guarantee an automatic jump in the promoted employee’s base rate in amounts between 12% and 18%, a very nice and meaningful raise!

Compare the financial lot of a newly promoted employee to that of every other employee who is not promoted.  Over the same 7 year period as previously cited, everyone’s wage growth has been flat at best.  Furthermore, their annual income has been reduced, due to increased employee health care and pension contributions and general inflation.

This presents a situation where about the only way officers can meaningfully boost their standards of living is by getting promoted.  This results in more competition, concern and anxiety over the promotional process.

Most of the promotion related calls I get concern the fairness of the process.  I hear concerns relating to the awarding of extra points, the assessment and grading process and the ability to bargain around civil service issues.  All concerns contain an element suggesting that someone, other than the caller, has gotten an unfair advantage.

Everyone expects that the promotional process is to be perfect.  Everyone wants to believe that the process is designed and administered in a fashion that objectively produces the most qualified candidate.  Over the years though I have concluded that this is simply not possible.

At the time I began representing the OPBA, promotions were governed exclusively by the Ohio Revised Code, Section 124.44 (“Section 124”) and/or each jurisdiction’s local civil service commission rules.  Statutory cities were bound to strictly adhere to Section 124 while “charter” cities could, in certain instances, adopt rules that varied from Section 124.

Section 124 is very simple and quite objective in that it requires a written competitive examination that ultimately results in the establishment of an “eligibility list” of names ranked by the grade on their exam, plus applicable points.  Once that is completed Section 124 requires that the highest ranking name be promoted, henceforth.

Many observers of Section 124’s objective process concluded and commented that its simple procedure did not necessarily produce the best supervisor.  They noted that to obtain good supervision more should be considered than just the person who scores the highest on a written examination.

As a response to this concern charter cities that could stray from Section 124 did so by introducing the “1 in 3” rule.  This permitted the employer to promote any of the names on the list from a grouping of the top 3, thereby doubling the employer’s options beyond just the top test taker.

Using “1 in 3”, though, added an element of subjectivity to the process and with subjectivity comes human nature and the potential for favoritism or bias to be added to the equation.  With “1 in 3” it is entirely possible that one very smart and very capable candidate, who once left a bad impression on someone influential, can go a long time, if not forever,  without being promoted.

Along the way competitive oral assessment components have been added allowing considerations for how a candidate reacts to spontaneous situations.  Assessment centers too add subjectivity to the process because they necessarily involve humans who can either favor someone for reasons other than their qualifications or be tipped to favor someone.

Furthermore, the various providers of the oral assessment component are either companies for profit (ex. PRADCO) or interest based associates (ex. Chiefs of Police Association).  As such they are capable of constructing ambiguous examinations or ambiguously grading them, while incorporating their own biases.  Or they can make mistakes in the process itself that can not be undone.

Several years ago, the Ohio Supreme Court ruled that unions or managements could force each other to bargain over the issues of promotions.  A handful of OPBA units have seized on this ability and have bargained their own promotional process, thereby superseding the applicable civil service law.

While our bargained for promotional processes have narrowed the chances for subjective abuse, they do not guarantee an entirely objective selection.  Again, this is because people are involved and when people make selections they naturally tend to use their own experiences and biases as part of their decision-making process.

In the midst of this unsolvable situation I must provide advice and counsel to a member seeking total fairness.  And mostly they do not like what I have to tell them.

I believe that any decision involving individuals and upward mobility, in terms of money and power, will necessarily entail some measure of subjectivity or bias.  The object of every promotional process is to avoid or minimize this, but in reality it is a challenge to construct a promotional process that is entirely objective.

Last Updated (Saturday, 27 September 2014 12:06)


Six Years Later and Still Fighting to Recover

by S. Randall Weltman, Esq.

September of this year will mark 6 years since the wholesale collapse of the U.S. economy.  As big of a blow that the Great Recession was to the OPBA’s membership, it was never contemplated that it would take 6 years to recover from!

It did not help that during the long, slow battle back to normalcy other harmful shots were delivered to the core of the OPBA’s membership, public employees working for municipalities and counties.  One was the state’s recent reduction and deletion of both its local government funds and the estate tax.  These moves reduced and eliminated revenue that was vital to our employers at the exact time that their  revenue was already diminishing from the recession.

Another blow was Senate Bill 5 and its implicit backlash against public employees.   While Senate Bill 5 was beaten back it has left lingering effects, all negative in nature.  One such negative is  my belief that SERB and its neutrals have shifted their thinking and attitudes in a way that is conducive to our employers’ loss of those important revenue streams.

It is now apparent that the state’s annual grant of local government revenue and the funds derived from the estate tax served as our employers’ “margin” or their “house money”, the dough that they depended on getting every year in varying but large amounts.  This was the money that our employers often used to fund wages and benefits, allowing us to slowly but steadily negotiate our pay packages to respectable, “middle-class” levels.

The elimination of these monies, spread out over the last few years, has allowed every one of the OPBA’s employers to truthfully declare that it has lost significant revenue.  And unless that employer has the demographic composition that produces growing income tax revenue, that employer has had some powerful arguments in favor of “towing the line” on wages and benefits.

As you know, when we can not get an employer to offer a reasonable settlement on wages, benefits and healthcare the only recourse we have to get more is to use SERB’s fact-finding/conciliation process.  Those are the proceedings before a professional neutral who will consider the facts and certain factors and then dictate the outcome of the parties’ negotiations.

You might recall that per the terms of Senate Bill 5, the fact-finding process was to be altered in favor of limiting the fact-finder’s so call “free reign” to impose a fair settlement.  Conciliation, per the bill, was to be modified so drastically as to render it virtually ineffective and useless.

Senate Bill 5’s proponents complained loudly that the neutrals on SERB’s roster were beholden to the unions and not sensitive to the specific needs of the employers or their communities.  They maintained that these neutral “outsiders” had too much power over local officials and the locality’s issues.  Senate Bill 5 was designed to reverse what its supporters perceived as a biased process.

Even though Senate Bill 5 was repealed, SERB has apparently taken heed of its anti-public employee sentiment.  In the last few years, SERB has clearly modified the fact-finding selection process so that we are offered neutrals that we are unfamiliar with and who are unfamiliar with our jurisdictions. More and more the “panels” of neutrals offered by SERB to the OPBA and its Cleveland area employers are from the Columbus, Cincinnati, and Toledo areas instead of from Northeast Ohio, as in the past.  I suspect that our area’s neutrals are now being offered to downstate parties in an attempt by SERB to alleviate any claims of bias.

Furthermore, we have learned that SERB is now “training” its neutrals in a manner that is conducive to addressing other Senate Bill 5 elements.  I do believe that SERB has urged its neutrals to more strongly consider “the public’s interest” when making their recommendations and rulings.  And I am convinced that this has resulted in decisions far less favorable to us than those received even a few years ago.

Where does all of the foregoing put us, or leave us?  Much like the world in which we live, the “have” cities and counties are now back to doing ok; restoring lost positions, granting raises and acting reasonable in regard to health care costs.  Then there are the “have-not” jurisdictions which, because of the nature of their community, have not recovered because their income tax or sales tax have not grown sufficiently.

The have-nots  really miss that “house money” and their miss results in substandard offers and below average settlements.  When we challenge those offers in fact-finding and conciliation it is harder than ever to get a really good result.  Ah, such is life 6 years after the outset of the financial crisis.

Meanwhile, I am not sure how good of a “go” these neutrals are having here in Ohio given the atmosphere and the persistent decline of union membership.  Based on the simple law of “supply and demand” this period of time can not be favorable for a career as a neutral.

There really is no factor that can control or limit the “supply” of neutrals.   Pretty much anyone can hang a shingle and vie for work as a neutral.  While all neutrals have to meet certain standards to be on the SERB roster and even more standards to be on the American Arbitration Association (AAA”) or Federal Mediation and Conciliation Service (“FMCS”) rosters, and even more for entry into the National Academy of Arbitrators, all can and do ultimately compete for the same work.  This makes for a lot of supply which ultimately means that they all work less frequently if not for less money unless, of course, the “demand” for their services outstrips their supply.

Unfortunately for the neutrals the demand for their services is declining and really shows no prospects for a pick-up.  Some of the slack in demand for neutrals is attributable to the slow but steady drop in union membership during the last several years.   Fewer union members translates  into fewer collective bargaining agreements meaning fewer grievance procedures and fewer grievances to arbitrate, or disputes to mediate or otherwise resolve.

I believe that even within the existing union/management situations there are less grievances that are ultimately arbitrated.  No doubt that the economy has forced some employers to be more conciliatory now that their budgets for outside counsel and other legal costs have been cut.  Or, maybe we can say that the parties are familiar enough with each other and the reality of each situation so as to permit them to more readily settle matters.  Either way, being a financially successful, full-time neutral these days must be quite a challenge.


Collective Bargaining Health Care in 2013

Collective bargaining in late 2012, early 2013 continues to be marked by uncertainty.  In the fall the largest uncertainty was the presidential race.  At stake was the means for addressing the economy as well as the survival of the Affordable Healthcare Act, legislation that Mitt Romney vowed to repeal.

After the election the uncertainty regarding the economy persists but the health reform law’s survival was eliminated.  Nevertheless, uncertainty about the implementation of the Act and its real impact on both private and public sector employers is still very present and very significant.

It is apparent to your OPBA negotiators that public sector employers are preparing for the law’s uncertainties by stepping up their efforts to shift health care costs away from them and on to you.  One way that many are seeking to accomplish this is to gain some form of “spousal exclusion or restriction”.

Long before the Great Recession of 2008 the US economy was forever transformed by the rise of the household with two working spouses.  Unlike the generation of your grandparents and maybe even your parents, households containing two working spouses is now the overwhelming norm.

It is also the norm for employers of all types to provide health care coverage to their employees.  Health care is such an important benefit for workers that both federal and state lawmakers have passed laws that regulate both health care providers and employer coverages.

The laws that govern health care and pension plans prohibit employers from discriminating amongst its employees in regard to the provision and uniformity of coverage.  This has ensured that both female and male employees must be offered the same types and levels of health insurance coverage.

As such, in most cases both spouses of a household have the ability to secure health care coverage from their employer.  If this has not been the case, it will be now as the Affordable Care Act requires all employers (except tiny ones), beginning in 2014, to either provide health care coverage to all of its employees or face a costly surcharge.

With health care to be all but guaranteed to every worker, employers have found a new way in their never ending quest to attack rising health care costs.  The new concept at our collective bargaining tables is “Spousal Exclusion” or “Spousal Carve-Out”.

Spousal policies and the proposals we get for it generally take one of three (3) forms:


  • A requirement that a working spouse pay a premium surcharge for coverage through the employer’s plan if the spouse’s employer offers health insurance;
  • A requirement that the spouse purchase health insurance through the working spouse’s employer plan before also purchasing it through the employer’s plan;
  • An outright exclusion from coverage under the employer’s plan if coverage is available from the spouse’s employer.


Fortunately the third option is not common.  This saves the working spouse whose employer has a clearly inferior and/or more costly (to employee) plan than the other spouse from having to take that plan in lieu of the spouse’s better plan.  This sort of exclusion results in a considerable savings to the spouse’s employer, because there is one less body to cover.

The second option is more common and less harsh than complete exclusion.  By requiring a spouse to enroll in his or her own plan, the other spouse’s employer saves money because it is only responsible for “secondary coverage” to the excluded spouse.  Per this method the secondary employer derives its savings from the fact that it does not pay anything until the deductibles and out-of-pocket maximums are reached under its own (now secondary) plan.

The most common type of spousal exclusion is the system that at the outset excludes all working spouses who have coverage opportunities from their employer.  Then it permits such excluded spouse to “buy” back into his or her spouse’s coverage by paying a monthly surcharge.

The size of the spousal surcharge will normally determine the effectiveness and amount of savings for the primary employer.  To influence employee behavior such charges must be significant, but if too significant the employer runs the risk of alienating good employees who will not appreciate such charges and the ultimate erosion of income that such a concept entails.

Do working spouse provisions result in significant savings to employers?  You bet they do.  The only question is how much.

In a family plan the two bodies that will almost always cost the most are the husband and wife.  They are now, or will become, of the age when they will incur the procedures and take the medication that are most costly to insurers.

While everyone thinks that children eat up health care costs, their multiple visits to the doctor’s office for the ear infection and their antibiotics are relatively cheap.  Normally they are not hospitalized and they are not forced to take expensive maintenance prescriptions.

Eliminating one-half of the costly spouse factor will necessarily lower both the “claims” experience and “cost per employee” factors of insurance costs.  While it may be difficult to identify the exact savings each employer will experience, it is easy to recognize that savings will occur.

The statistics show that spousal restrictions are a rapidly growing component of public sector health plans in Ohio.  In every major type of jurisdiction reported by SERB, except counties, the percentage having spousal restrictions has increased significantly.  According to SERB’s 2012 Health Care Survey, from 2011 to 2012 the percentage for cities in Ohio, the percentage jumped from 18.7% to 50%.

I believe that more and more of your employers will try to implement spousal exclusion provisions.  If they are of the type that allows for a reasonably affordable buy-in they are difficult to argue against, although we still do!

The best response to this issue is to identify and quantity the value of savings afforded the employer and then seek to obtain and add as much of that value back to the revenue side, in the form of wages or lower or less health care costs for everyone else on the plan.

Spousal exclusion is not the only new concept that employers are proposing at current contract negotiations.  More than ever we are seeing “wellness plans” that, through employee participation, can result in either higher or lower costs for the employee.

Most wellness plans require commitments, by the employee and sometimes the spouse, to complete certain metrics testing and/or conform to certain behavioral changes.  Employees may be required to regularly measure their blood pressure or cholesterol levels.  Some plans may require that employees engage in positive lifestyle behaviors like exercising or stopping smoking.

Employees who participate in wellness programs are normally provided some thing of value in exchange for their participation.  Usually it is a break in their monthly employee health care contribution.  This is called the “carrot” approach.

Some employers, though, insist to employ the opposite approach known as the “stick” method.  The stick method raises costs for workers who refuse to participate, who do not take action to improve their measured metrics or who continue to engage in risky health behaviors such as smoking.

There really is not much of fight in regard to wellness plans.  They generally fall into that rare event known as a “win-win” situation.

At this stage of history though, it sure seems that there is not much else we can “win” when it comes to health care.


Moving Past The Past Practice Misconception

Over the years I have noticed many misconceptions that OPBA members possess in the area of labor law.  Those misconceptions range from “the law provides us with guaranteed breaks” to “HIPPA prevents my employer from inquiring about my illness” to “we’ve always done it that way so it’s a past practice.”    
Each of these misconceptions has a basis for belief but none are actually true.  In this article I examine and discuss the real law and meaning of the popular term “past practice”.

Past practice is a term of art that arises when a party to a collective bargaining agreement attempts to enforce a “practice” regarding a matter that is not included in the written contract.  It is also asserted in order to assist in the actual interpretation of a confusing written term of a contract.  And finally, past practice is sometimes cited to support a claim that a “clear” term of the written contract has been “amended” by mutual agreement as evidenced by the parties’ past practice.

Evidence Required To Establish A Past Practice

Most arbitrators have recognized that for a past practice to be established that certain elements must be proven  in regard to the practice.  The practice must be unequivocal; clearly understood and acted upon; and readily ascertainable over a reasonable period of time as a fixed, and established practice accepted by both parties.

A couple of understandable ways that arbitrators have defined a past practice are: “a pattern of conduct which appears with such frequency that the parties understand that it is the accepted way of doing something”; “a practice exists when a certain result has been utilized in repetitive and identical circumstances”; “a practice is established if, when one circumstance occurs, it is consistently treated in a certain way”. To constitute a past practice, the occurrence need not be daily or weekly, or even yearly, but when it happens, a given response to that occurrence must always follow.

Past Practice When The Contract Is Silent

In cases where the labor contract is completely silent with respect to a given activity, the presence of a well-established practice may constitute an “implied” term of the contract.  In law, an implied term of a contract is as enforceable as a written term.
In labor law, though, the enforcement of an implied term often depends on whether the term involves methods of operation and/or direction of the workforce or whether it involves a benefit of personal value to the employees.  Generally, past practices involving a benefit are permitted to become an implied term while practices involving the exercise of management rights are not.

As we all know, arbitrators have permitted wide authority in management to control methods of operation and to direct the work force, including the right without penalty to make changes if the changes do not violate some right of the employees granted elsewhere by the written contract.  As such, arbitration case law contains many examples of a past practice not becoming an implied term sufficient enough to prevent management from: changing work schedules or reassigning work or determining the number of workers or eliminating a job and/osr adding or eliminating job duties within reasonable limits.  The rationale behind these cases is that if management really intended to concede its management rights, then it would do so expressly in writing, and not implicitly.

An illustration of this outcome would be a situation where management has retained its  right to schedule and pursuant to that right management has utilized fixed shifts for several years.  Despite this history the parties have not referenced such a practice anywhere in their labor contract.  When the employer suddenly decides to implement rotating shifts instead, most employees think that the long standing  past practice of utilizing fixed shifts will prevail.  Uh, no; the contract is silent and the implied term we think exists will not be enforced because a management right relating to running the operation is involved.

In contrast to the freedom management is afforded regarding its basic functions, arbitrators often rule that past practice matters involving “a benefit of peculiar personal value to the employees” can be implied enough to become enforceable.  Because these matters generally do not involve management rights and because a long standing but unwritten benefit is at stake, arbitrators have found the provision of the benefit to be implied. 

Arbitrators reason that an employer would not ever provide something of value to its employees, regularly and routinely, unless it intended to do so.  Wash-up periods, lunch period arrangements, paid work breaks, free coffee or free meals, payment of employee’s salary during workers’ compensation waiting period, release time for collective bargaining, allowances and maternity leaves of absence are all examples of a “benefit of a peculiar value” that arbitrators have permitted to become implied terms of a contract.

A great example of a past practice becoming an implied term of the contract involves the giving/taking of a promotional test in 24/7 operation like a police department.  In this instance there will always be candidates taking the exam while they are on duty and other candidates taking the exam while they are on their off time.  Yet rarely is there a contract term that addresses this activity.

In most cases involving this activity the parties have, knowingly or not, developed a past practice of releasing working candidates from duty and/or compensating off duty candidates for attending.  Even though this may happen once every three (3) years, it happens the same way each time. Should the employer ever decide to terminate such a practice and refuse to pay those taking the test while off duty, it will probably be on the losing end of an implied term past practice case.

Past Practice Used To Interpret A Contract Term

The most common use of a past practice is for the interpretation of ambiguous or unclear contract language.  This makes sense because unclear language can best be defined or explained by the parties’ “intent” in agreeing to and constructing the contract’s language. And a party’s intent is most often and best defined in its actions.  Those actions are demonstrated and measured through the “practice and custom of the parties” in relation to the unclear term.  Thus the parties’ past practice often provides the real meaning to an unclear contract term.

The general attitude of arbitrators is that they give great weight to a past practice when interpreting unclear language.  They routinely rule that where a practice has established a meaning for language in a contract, the language will be “presumed” to have the meaning given it by that practice.
A past practice used to interpret an ambiguous term does not have to be so “frequent and regular and repetitious.”  For purposes of interpreting ambiguous language, relatively few past instances have been required to establish a binding practice.  This is especially so when the incidents giving rise to the issue rarely occur.  So long as the parties’ practice is consistent upon each infrequent occurrence, it still rates as sufficient to define the ambiguous term.

Past Practice Used To Permit Variances From Clear Contract Language

While past practice is frequently used to establish the intent of contract language that is subject to different interpretations, it rarely can be used to alter the meaning of a clear and unambiguous term.  In almost every instance the clear language is enforced.  This is so even where an arbitrator overwhelmingly believes that, on the basis of fairness, the past practice should have prevailed.

Here are some illustrative arbitration holdings standing for the principle that clear language always trumps a past practice:  “Where a conflict exists between the clear and unambiguous language of the contract and a long standing past practice, the Arbitrator is required to follow the language of the contract”; “While the Arbitrator recognizes that it is difficult to accept the overturn of a fifteen (15) year past practice, the Arbitrator is required to do so in light of the clear and certain language”;  “Past practice” is a useful means of ascertaining intention in case of ambiguity or indefiniteness, but no matter how well established a practice may be, it is unavailing to modify a clear promise.” 

A good example of this principle involves the specific time limits set forth in a grievance procedure that also includes a provision requiring the parties to “strictly adhere” to such time limits.  Even though the parties may have established a past practice of routinely ignoring and/or relaxing those specified time limits, should one or the other insist that one acted untimely, that insistence will prevail.  This is because of the contract’s clear language requiring strict compliance.

Any past practice that the parties have mutually followed or that have been enforced by an arbitrator can ultimately be broken and discontinued.  This can only occur, though, upon the expiration of the contract, during the collective bargaining process.  At the table the party who wants to terminate the practice simply declares that the practice will no longer be recognized, thus allowing or forcing the other party to regain (or not) the practice through the bargaining process.
As the foregoing indicates, what OPBA members often think of as a past practice is probably still a past practice.  It is wrong, however, to think that every past practice can be made to be binding as if it was a written contract term.  For further guidance and explanation of the law of past practice, consult your OPBA Representative.    

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