By Ed Jacques, LEJ Editor
For approximately 30 years in Garden City, the position of deputy chief, lieutenant, special investigations, and lieutenants supervising all support and professional services included entitlement to a take home vehicle, including responsible personal use of the vehicles. Past collective bargaining agreements, including the current one, were renegotiated without any provision regarding take home vehicles referenced, however, the entitlement to take home vehicles had been clearly defined both orally and in writing in Department General Orders, and a Take Home User Agreement, thus establishing a well recognized past practice.
Effective May 26, 2008 a complete elimination of personal use of the vehicles for any purpose was imposed. Police Chief Kim Scott advised the Command Officers that per City Manager Dave Harvey, all related General Orders and Take Home User Agreements were invalid and would be rewritten to eliminate any personal use of the vehicle. The Chief stated that no replacement for the reduction of benefits would be offered to the affected Garden City Command Officers Association (GCCOA) members. The Union immediately demanded to bargain the issue citing a unilateral change in conditions of employment. The City Manager decided to “suspended my original order of the elimination of the take home vehicles until both the City and GCCOA negotiate the issue.” Later without bargaining the issue the City went ahead and eliminated the take home vehicles for all the officers except the deputy chief.
GCCOA members were represented by POAM Assistant General Counsel Douglas Gutscher who contended that this was a case of a long standing past practice since 1985 which has been incorporated in the collective bargaining agreement. Officers had given up stand-by pay in lieu of the personal use of take home cars as part of employee compensation. The use of take home cars was taken from the unit without negotiations which constitutes a breach of contract.
The City’s position was that it has the Management Right to remove Command Officers from stand-by duty and exercise that right for the purpose of confronting mounting budget deficits. They argued that any alleged past practice was dissolved by the city’s growing operational deficit.
The Union filed a grievance which was heard by Arbitrator Jerry Hetrick. In his Award, the arbitrator cited the well known definition of past practice by Arbitrator Richard Mittenthal. Arbitrator Mittenthal has held that a course of conduct, to be a past practice, must satisfy the following criteria:
- Clarity and consistency
- Longevity and repetition
- Underlying circumstances which give a practice its true dimensions
In this particular Award, Arbitrator Hetrick stated that, “there can be no serious question about the existence of a past practice of providing take home vehicles for some twenty-eight years or that it arose out of a mutual understanding that Command Officers would forgo stand-by pay in exchange. No reason existed for the union to propose that a take home vehicle provision be inserted into the agreement. It continued under several collective bargaining agreements.”
When determined a past practice exist, arbitrators often look at whether the practice arose out of the exercise of a management function. Where arising out of a management function relating to methods of operation and efficiency the Arbitrator may also consider the rationale for its elimination.
Arbitrator Hetrick determined that this was not a case of pure managerial right to adopt or eliminate a method of operation or the service to the public. The decision to cancel take home vehicles flowed from budgetary restraints and the Mayor’s decision to reduce costs. In similar circumstances, arbitrators have ruled the practice of providing take home vehicles has become a binding practice that could not be eliminated unilaterally without bargaining with the Union. A past practice, if proven, is part of the collective bargaining agreement. Hetrick noted that the employees lost the use of take home vehicles and the stand-by pay provision will no longer apply.
Arbitrator Hetrick determined that the changed circumstances relied upon by the Employer were not operational or a core managerial function, they were simply economic. The Employer originally asked the Union to give up stand-by pay in exchange for the take home vehicle. The practice was supported by mutual agreement and may be subject to change only by mutual agreement. This is particularly the case where it involves a working condition, benefit or compensation and not a core managerial function. The elimination of an economic past practice to scrutinize cost may be a legitimate business decision but it does not override the obligation to negotiate with the Union over its elimination.
Arbitrator Hetrick directed Garden City to reinstate the use of take home vehicles to the affected employees and ordered the City to reimburse those employees at the City’s established mileage rate for such mileage to and from the place of employment and residence.