At a time when the Oakland Police Department must focus on improving service and adopting best practices, the City’s labor contract with the Oakland Police Officers’ Association (OPOA) places excessive emphasis on preserving “past practices.”

In labor relations, a “past practice” is an unwritten, but well-established, practice that affects the terms and conditions of employment. Establishing a “past practice” requires strong evidence that a procedure is acknowledged by both parties and consistently followed over a long period of time. Labor law requires parties to negotiate before making any changes to such practices.

Unfortunately, in the Oakland Police Department, a contract provision on “beneficial past practices” has allowed the OPOA to unilaterally block almost any proposed change in the department.

The language of the contract is innocuous enough. The contract states “… existing benefits or beneficial practices, which are normally subject to [bargaining], shall not be modified without mutual agreement.”

However, historically weak management within the department has neglected to uphold the stringent requirements of legally establishing a “past practice.” As a consequence, no practice, big or small, can be changed without union approval.

Worse still, the past-practices clause makes even the smallest change subject to costly and time-consuming grievance procedures and arbitration. The union may also invoke a procedure called Immediate Dispute Resolution that will automatically halt any change for 90 days.

It rarely comes to that because, under threat of a grievance, police brass has frequently backed off, rather than engage in a protracted legal battle. The result is administrative gridlock within the Oakland Police Department at a time when the public demands improvement.

The clause has been used to justify the continuation of a dizzying array of poor practices including:

  • Two sworn officers are assigned to hand out car keys;
  • A sworn sergeant and an officer are assigned full time to information technology;
  • Employees are permitted to receive vacation pay and work overtime at the same time if they choose to work during a vacation;
  • “Side letters” providing additional monetary benefits are not properly approved by the City Council;
  • Motorcycle officers are permitted to drive their motorcycles home;
  • Dental and life insurance benefits for officers are administered by the union, at a cost that appears to exceed the City’s cost of providing these benefits.

These “past practices” are in direct conflict with what the public demands, and the department is federally mandated to adopt — i.e., best practices. In addition, the focus on past practices is neither transparent nor democratic.

Under the City Charter, the City Council, an elected body, must approve the terms of the City’s contract with the union. Yet, under the past-practices clause, a binding and costly practice may be established without any public oversight. This poses a problem for elected officials. When voting to approve a contract containing a past-practices clause, do they know what they’re voting on?

Oakland Police Department management has already begun to challenge the provision, and recently won a legal battle restoring the right to reassign healthy officers from working a desk to walking a beat. The OPOA contended that the department had established a past practice by choosing not to make such reassignments in the past. An arbitrator sided with the department, ruling that the parties were not obligated to negotiate over this important management right.

Although this is a significant victory, the department should not have to fight to recover basic management rights. The Chief of Police cannot be restricted by every small “past practice” in the effort to meet public needs. The past-practices clause is a major roadblock to the effective delivery of police services in Oakland, and it must be eliminated from the upcoming labor contract.

Editor’s note: A public forum hosted by the Black Elected Officials of the East Bay on September 20 from 5 to 9 pm in the City Council Chambers in City Hall will discuss the contracting issues raised in this series. Please address any questions to Councilmember Desley Brooks by email.

This is part 3 of a four-part series that includes: