Page 18 - November 2020

The role of prior arbitration awards and past practices
A few months ago, I wrote an article on the labor board’s decision to defer one of the many unfair la- bor practice charges the Lodge has filed against the City. Although the parties have mutually selected an arbitrator, we are in the process of securing
a hearing date. In essence, the underlying allegations stem from the various changes that COPA investigators have implement- ed when taking statements during disci- plinary investigations — in violation of
what has been referred to as the officers’ Bill of Rights,
found in Article VI of the parties’ Collective Bargaining Agreement (CBA). As a reminder, the Lodge and the City bar- gained for and agreed upon contractual protections for officers during investigations, and included such protections found in Article 6 many years ago as part of the negotiation process. Only recently has the City tried to change (rather dismantle) those protections amid the current anti-police sentiment that has swept the country.
I want to focus on the concept of “past practice” and the im- pact of prior arbitration awards on the various provisions found in the current CBA. Typically, arbitrators will give meaning to a provision that is clear and unambiguous when interpreting any provision of the CBA. In other words, if the words of a contract provision are plain and clear, and they convey a distinct idea,
there is no need to rely on any interpretation tools and the clear meaning must be applied by an arbitrator. The salary levels set forth in the wage scale are an example — the parties cannot dis- pute the written dollar amounts or percentage increases. How-
ever, what happens if the language of a particular provision is not clear, but instead is ambiguous or open to interpre-
tation?
One of the most important standards used by arbi-
trators in interpreting ambiguous contract language is the custom or past practice of the parties to a contract that has been created over time. As one arbitrator ex- plained in a case between the City and the Lodge in a 2006 arbitration award, “Where practice has established a meaning for language contained in past contracts and continued by the parties in a new agreement, the language will be presumed to
have the meaning given it by that practice.”
In explaining how a course of conduct becomes a binding
past practice, he explained that the practice must be clear and applied consistently (a course of conduct that is vague and am- biguous or that has been contradicted as often as it has been followed can hardly qualify as a practice); there should be lon- gevity and repetition (a period of time must elapse during which a consistent pattern of behavior emerges); there should be ac- ceptability (all parties must have knowledge of the particular conduct and regard it as the correct and customary means of
PAT FIORETTO
18 CHICAGO LODGE 7 ■ NOVEMBER 2020