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handling a situation); an arbitrator must also consider the un- derlying circumstances that give a practice its true dimensions; and, finally, the significance attributed to a practice may possi- bly be affected by whether or not it is supported by mutuality.
One such example of an established past practice between the Lodge and City involves the interpretation of the words “represented by counsel,” “advice,” and “will not in any way in- terfere” in the context of attorneys accompanying Lodge mem- bers who are subject to discipline. Pursuant to the CBA, police officers have a right to have counsel present when interrogated. More than 30 years ago, a dispute arose over what role attorneys had when accompanying police officers who provide state- ments during an interrogation. In a long-standing 1997 arbitra- tion award, the arbitrator ruled that the evidence presented at the hearing established a clear, consistent, long-standing, ac- cepted and mutual practice of the following rights to legal rep- resentation:
1. Counsel representing a police officer being interrogated or interviewed may consult with an officer after a ques- tion has been asked and before an answer is given;
2. The consultation may be outside the hearing room or in the presence of the investigator, with the attorney whis- pering to the officer or vice versa;
3. That investigators are not to make notations on the state- ment being taken of the time or periods that an officer consults with his counsel;
4. That attorneys may prepare written answers if adopted by the officer, provided that the use of such technique is not disruptive or does not interfere with the interview;
5. Attorneys are not to answer questions for the officer;
6. Attorneys are not orally to give answers or interrupt an
oral question;
7. Objections by attorneys as to issues of relevance are to be noted on the record;
8. Attorneys are always to advise the accused officer or wit- ness officer to tell the truth; and
9. Attorneys are not to be disruptive or interfere with the interview.
The arbitrator concluded, “So that all will understand, there is a contract and there are past practices as described herein that have explained the meaning of general language used in [Article 6]...once a contract has been interpreted by the parties’ past practice, it is binding upon the parties and may be subject to change only by mutual agreement.”
As I have mentioned in several prior articles, once an arbi- trator issues an award, the decision of the arbitrator is final and binding upon the City, Lodge and grievant officer. Although the arbitration award was issued in 1997, these principles still apply today. It appears that the City never sought to challenge or va- cate the award.
Finally, one other significant arbitral principle is that prior labor arbitration awards have a force that can be characterized as authoritative. Such awards cannot be changed or modified, unless negotiated and agreed to by the parties. Indeed, after the 1997 award, during the multiple negotiations over the suc- cessor CBAs leading to the current contract between the City and Lodge, the City never sought to change the language deal- ing with an attorney’s role. Accordingly, the practices outlined above are there “to behold” and continue in effect today.
The City, therefore, cannot implement changes on how COPA conducts its investigations in ways that are inconsistent with the CBA. The City cannot pick and choose from among the pro- visions set forth in Article 6 — full compliance is mandatory.
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