Peabody Police Department Found to Have Violated the Law by Assigning Junior Sergeants Rather than Senior Sergeants to be Officer-In-Charge

By decision dated February 5, 2013, the Massachusetts Department of Labor Relations found that the City of Peabody violated Section 10(a)(5) and 10(a)(1) of the Law by failing to bargain in good faith when it assigned junior Sergeants rather than senior Sergeants to vacant Watch Commander (also called OIC: Officer-In-Charge) shifts without giving the Union prior notice and an opportunity to bargain to resolution or impasse.

The Peabody Police Department has three daily shifts: morning, day, and evening.  The Police Department requires that each shift have a Watch Commander or Officer-in-Charge.  When a Lieutenant is in charge on a shift, the Lieutenant is called the Watch Commander.  When a Lieutenant is absent from a shift and there are two sergeants on that shift, the Sergeant in charge is called the OIC.  For at least 20 years prior to July 5, 2009, when there was no Lieutenant on duty for a particular shift and there were two or more Sergeants on that shift, the senior Sergeant assumed the duties of Watch Commander (or OIC), making the senior Sergeant eligible for out of grade pay at the OIC level.  The Union put on two Patrol Officers and a Sergeant to testify regarding this consistent practice.   Although the Chief testified that he was “not aware of any instances of only senior sergeants always getting OIC assignments,” the hearing officer credited the Union’s witnesses, stating that they testified consistently and unequivocally in support of the long-standing practice.  The hearing officer further stated that the City failed to present additional evidence rebutting that point other than the Chief’s testimony.  As a result, the hearing officer found that the Chief authorized the assignment of junior Sergeants to the OIC position with OIC pay in violation of the Law.

The City made three arguments: (1) that there was no past practice, (2) that the Union waived its right to bargain under the managements rights clause, and (3) that the City had the right to assign who the OIC was pursuant to statute and ordinance.  The hearing officer rejected all three arguments, finding that (1) there has been a past practice, crediting the Union’s witnesses over the Chief’s testimony, (2) that the Union did not waive its right to bargain with the general management rights clause  that was in the collective bargaining agreement, and (3) that the City’s reliance on statute and ordinance was wrong because the Chief’s decision to assign junior Sergeants rather than senior Sergeants to the OIC position was outside the scope of the City’s core managerial prerogative.

The hearing officer ordered the City to cease and desist from changing the past practice of assigning senior Sergeants to the OIC position and to make whole all affected employees that suffered economic losses as a result of the City’s failure to adhere to the parties’ past practice of assigning senior Sergeants to the OIC position.  This is an important decision and reminder to all Chiefs and Police Departments that past practice must be adhered to and cannot be unilaterally changed without first bargaining in good faith with the union.