Arbitrator Rules That Peabody Police Association May Enforce Past Practice Of Working Outside Jobs
An arbitrator has ruled that the Peabody Police Chief violated the past practice clause of a collective bargaining agreement and his own department rule when he unreasonably denied the request of a local union official to work as a reserve officer in another town. This arbitration victory highlights the benefits of having past practice clauses inside labor contracts.
For years, Peabody officers worked any outside job they wanted, so long as the job did not conflict with their police duties. Peabody officers worked successfully as athletic coaches, small business owners, and even police officers in other communities. The Chief even issued a department rule permitting officers to work outside jobs so long as they obtained his permission.
This longstanding and consistent practice suddenly changed when the vice president of the Peabody Police Benevolent Association, MCOP Local 351, AFL-CIO asked to work as a reserve officer in another town (a position he used to hold prior to accepting a full-time appointment in Peabody). The Chief denied the request without explanation. Later, the Chief provided new and different reasons every time he was asked to explain his handling of the request.
The Association grieved the Chief’s actions (it also filed a charge of unfair labor practice). While the Agreement contains no specific clause entitling officers to work outside employment, it does contain a “past practice” clause: “Employee benefits, privileges or working conditions existing prior to this Agreement not specifically covered by this Agreement shall remain in full force and effect.” It also has a broad definition of grievance. The practical benefits of broad arbitration and past practice clauses are very real: parties can settle workplace disputes in a relatively quick manner. As the arbitrator observed, “It is difficult to envision what type of dispute would be excluded from the grievance procedure.”
Following a hearing, the arbitrator credited the Association’s testimony and nearly rejected every argument and fact raised by the City. Over the City’s objections, the arbitrator found that he had the authority to resolve the grievance under the past practice clause. The Arbitrator refused to be cowed by assertions of management rights. Instead of finding that Management Rights language serves as a magic wand for employer actions, the arbitrator found that the Chief is obligated to exercise managerial authority in a non-arbitrary, non-capricious, and reasonable manner. The Chief here failed to do so.
The arbitrator rejected practically each and every defense asserted by the Chief. He rejected the fanciful claim that the Association and Chief previously agreed that officers could not work for other police departments. The arbitrator wrote, “There is no reliable evidence that the City notified the Union of its intent to discontinue the practice of allowing full-time City police officers to work as reserve officers in other communities” (emphasis added),
The arbitrator further found that the bizarre reasons cited by the Chief (e.g., training, liability, etc) to prohibit the Association official’s request to work as a reserve officer basically were bogus. He wrote, “There was no evidence that the Chief’s concerns were rooted in fact.”
Most damning of all perhaps is that the arbitrator found that the Chief fundamentally mishandled the officer’s request to supplement his income. The Chief failed to conduct a “reasonable inquiry” into the officer’s request, failed to raise any legitimate concerns, and failed even to talk to the officer, union and outside employer about any obstacles to working an outside job. In sum, the arbitrator found that the Chief abused his discretion in denying a request for no verifiable reason and therefore violated the collective bargaining agreement. For a remedy, the arbitrator ordered the chief to let the officer accept employment as a reserve officer for another town.