Is Past Practice a Practice of the Past?

Employers may want to think twice before relying on past practice as the basis for disciplinary action. In Ohio Patrolmen’s Benevolent Assn. v. Findlay, the Ohio Supreme Court concluded in its 6-1 decision that “[a]ny limitation on an arbitrator’s authority to modify a disciplinary action pursuant to a CBA provision requiring that discipline be imposed only for just cause must be specifically bargained for by the parties and incorporated into the CBA.”

The Findlay Police Department utilizes a “discipline matrix” that sets forth progressive levels of discipline based on the seriousness of the offense and the number of prior violations. If more than one discipline level is indicated, the Police Chief has sole discretion in determining which level of discipline is appropriate.

On several occasions, a sergeant received disciplinary action, ending in his termination. He filed a grievance asserting no just cause for his termination and that the Police Chief’s application of the matrix violated the CBA. The arbitrator set aside the discharge penalty, but found just cause for suspension. The arbitrator also stated that the disciplinary matrix “should be applied in this case.”

The arbitration award was appealed and vacated. The Ohio Supreme Court then reviewed the issue of whether the just cause for discipline provision of the CBA authorized the arbitrator to change the disciplinary action recommended by the Police Chief pursuant to the matrix. Ultimately, the arbitration award was reinstated.

The Court determined that the CBA does not mention the matrix, and no language in the CBA restricts an arbitrator’s authority to modify the discipline imposed once the arbitrator determines that there is just cause to discipline the employee. It also clarified that “the city’s right to develop rules is not the right to unilaterally define the meaning of the phrase ‘just cause’ for purposes of the CBA.” The Court’s broad holding seems to conflict with the longstanding tenant of labor law that the industrial common law, including past practice, “is equally a part of the collective bargaining agreement although not expressed in it.” Therefore, employers should proceed with caution.

For extra guidance on contract negotiations or employee discipline, please contact any FHKAD attorney at (614) 221-1216.