PAST PRACTICES WHAT WELL COVER What is a past practice How a past practice can be used to interpret supplement and perhaps even contradict contract language Past practices and the continuing duty to bargain ID: 586781
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Slide1
THE IMPACT OF PAST PRACTICE ON COLLECTIVE BARGAINING
Slide2
PAST PRACTICESWHAT WE’LL COVER
What is a past practice?
How a past practice can be used to interpret, supplement, and perhaps even contradict contract language.
Past practices and the continuing duty to bargain.
Waivers of the right to protest changes in past practices.
Remedies where past practices have been unlawfully changed.Slide3
A TYPICAL PAST PRACTICE ISSUE
Nothing in the employer’s rules says anything about employee tattoos or body piercings.
The employer receives citizen complaints about employee tattoos the citizens find offensive.
In response, the employer requires all employees with tattoos on their arms to wear long-sleeve shirts while on duty.
Anticipating similar problems, the employer bans all male employees from wearing body piercing jewelry while on duty.Slide4
OTHER TYPICAL PAST PRACTICE ISSUES
Changes in pay calculations or pay periods.
Changes in work schedules.
Changes in job duties.
Subcontracting.
Changes in disciplinary rules.
Changes in insurance benefits.
Residency rules.Slide5
WHAT IS A PAST PRACTICE?
From
How Arbitration Works
, by
Elkouri
and
Elkouri
: A past practice must be (1) unequivocal; (2) clearly enunciated and acted upon; and (3) readily ascertainable over a reasonable period of time as a fixed and established practice accepted by both parties.
Another definition requires “clarity, consistency, and acceptability,” with “clarity” speaking to uniformity, “consistency” speaking to repetition, and “acceptability” involving the sense of mutuality of the practice.Slide6
WHAT DOES “CONSISTENT” MEAN
Close to absolute consistency is necessary. If the employer does something 75% of the time, there is no binding past practice.
For example, if the employer had required one employee cover up an objectionable tattoo obtained prior to employment, how would the
consistency
of the past practice be evaluated?Slide7
WHAT IS A “CLEAR” AND “KNOWN” PAST PRACTICE?
A past practice is clear if it is known to both parties.
What does “known” mean? Can a binding past practice . . .
Be established in a fire department if the employer’s HR or labor relations entity is unaware of the practice?
By mistake?
By the actions of a third party?Slide8
HOW LONG DOES IT TAKE TO ESTABLISH A PAST PRACTICE?
The inverse relationship – the more frequently an event occurs, the less time it takes to establish the event as a past practice.
Something that occurs once a year will take years to establish as a past practice.
Something that occurs daily may only take months to establish a past practice.Slide9
THE USES OF PAST PRACTICE, AMBIGUOUS CONTRACT LANGUAGE
Where contract language is ambiguous, virtually every arbitrator will use past practice as an “extrinsic aid to interpretation.”
Past practice and bargaining history are probably the most important extrinsic aids to contract interpretation.Slide10
THE USES OF PAST PRACTICE, AMBIGUOUS CONTRACT LANGUAGE
How ambiguity is judged. The starting point:
Collective bargaining agreements are a type of contract, and their interpretation is governed primarily by principles of contract law adapted to the bargaining context.
According to one of those principles, where contract language is clear and unambiguous, the clear meaning must be given effect.Slide11
THE USES OF PAST PRACTICE, AMBIGUOUS CONTRACT LANGUAGE
How post-bargaining conduct impacts the past practice assessment:
A practice that develops after the addition of ambiguous contract terms may likewise evidence what the parties thought would result from the language being adopted. The presumption is that the parties‘ intended meaning is reflected in their subsequent application of the contract language.
Mittenthal
, "Past Practice and the Administration of Collective Bargaining Agreements," 59 Mich. L. Rev. 1017, 1025 (1961).Slide12
EXAMPLES OF UNCLEAR CONTRACT LANGUAGE
“Patrol officers may be scheduled to work a 5/8 or 4/10 shift.”
Does this language give the employer the right to unilaterally change employees from one shift to the other?Slide13
EXAMPLES OF UNCLEAR CONTRACT LANGUAGE
“Where the shift strength is reduced or increased on holidays, consistent with the needs of the City, assignments shall be offered to the most senior firefighter.”
Does this language apply only to firefighters, or to bargaining unit fire lieutenants and captains?Slide14
EXAMPLES OF UNCLEAR CONTRACT LANGUAGE
“As used in this Contract, overtime means time an officer is authorized to work in excess of eight (8) hours in a work day, or forty (40) hours in a work week.”
An officer takes two hours of vacation at the start of the shift, and then works four hours after the end of her shift. Does the two hours of paid leave count as time the officer is authorized to work? Slide15
THE USES OF PAST PRACTICE, IMPLIED CONTRACT TERMS
Where a contract is completely silent on an issue, past practice can create an implied term of the contract.
Arbitrators are split on whether this is a permissible use of past practice, though the majority of arbitrators believe a clear past practice can become an implied contract term.
Example: Though the contract is silent on the issue, the employer has consistently reimbursed employees at the IRS rate for mileage.Slide16
THE USES OF PAST PRACTICE, CONTRADICTING THE CONTRACT
Some find that a past practice can even contradict the explicit terms of a contract.
Important factors are the length of the practice, and intervening bargaining opportunities.
Example: The contract specifies a $10 prescription co-pay. For years, the co-pay has actually been $15. Slide17
THE USES OF PAST PRACTICE, CONTRADICTING THE CONTRACT
Words from the leading court decision:
“To require a party to bargain anew before enforcing a right set forth in the contract requires proof that the parties knowingly, voluntarily, and mutually agreed to new
obligations.
To vary the clear written mandates of the contract, the understanding or past practice must be evidenced by substantially stronger evidence than when utilized to interpret ambiguous language or to fill in areas where the contract is
silent.”
Port Huron Education
Ass’n
v. Port Huron Area School District,
452 Mich. 309, 550 N.W.2d 228 (Mich.1996
).Slide18
PAST PRACTICE AND THE CONTINUING DUTY TO BARGAIN
If a matter is a mandatory subject for bargaining, an employer may not make changes in past practices affecting the matter without first negotiating with the labor organization representing employees unless the labor organization has
waived
the right to bargain.Slide19
THE CONTINUING DUTY TO BARGAIN, APPLICABILITY
The continuing duty to bargain applies before the parties have negotiated their first contract.
Example: Employees decertify their incumbent labor organization and select a new union. Before the first contract is signed, the employer changes shift schedules.Slide20
THE CONTINUING DUTY TO BARGAIN, APPLICABILITY
The continuing duty to bargain applies after the parties’ contract has expired, and before a new contract is ratified.
Example: After a contract expires, the employer terminates an employee without just cause.
How an “evergreen clause” plays into this scenario.Slide21
THE CONTINUING DUTY TO BARGAIN, APPLICABILITY
The continuing duty to bargain applies during the term of the contract to mandatory subjects of bargaining that are not specifically addressed in the contract.
Example: The contract is silent on the issue of residency, and the voters amend the employer’s charter to impose a residency requirement.Slide22
WAIVERS BY CONTRACT
Waivers by contract must be both
specific
and
clearly articulated.
Waivers must be
specific
to the subject matter that is involved.
Waivers must consist of language that
clearly articulates
that a labor organization has waived the right to bargain over changes in the area.
A waiver must be an “intentional relinquishment of a known right with both knowledge of its existence and an intention to relinquish it.”Slide23
THE CONTINUING DUTY TO BARGAIN, RESTATEMENT
If something is a mandatory subject for bargaining, an employer may not make changes in past practices affecting the matter without first negotiating with the labor organization representing employees unless the labor organization has
waived
the right to bargain.Slide24
WAIVERS BY CONTRACT
To be enforceable, contract waivers must be
clear
and
specific
.
Management rights clauses.
“The City shall retain the exclusive right to exercise the customary functions of management including, but not limited to . . . (a list of functions)”
“Zipper” or “complete agreement” clauses.
“This Agreement spells out the total agreement in its entirety between the parties, including wages, salaries, pensions and all fringe benefits.”Slide25
WAIVERS BY CONTRACT
“Management rights and zipper clauses are frequently cited as the dual bases for a defense of waiver by agreement and are most often rejected. Without supporting evidence in other substantive provisions of the contract, the parties' negotiating history, or past practice, catch-all contract clauses are not sufficient to evidence a clear and unmistakable waiver.”
County of Putnam
, 18 NYPER ¶ 4565 (1985).
Slide26
A SAMPLE MANAGEMENT RIGHTS ISSUE
“The
employer
retains all rights concerning the
suspension, demotion, or discharge of policemen according to the provisions of the Borough Code.”
Is this a waiver of the right to bargain over a change in a disciplinary matrix setting maximum punishment levels?
Middletown Borough Police Officers Association
, 47 PPER ¶ 30 (Penn. LRB 2015)Slide27
WAIVERS BY INACTION
The need for a demand to bargain.
A demand to bargaining need not use “magic” words, but should indicate what mandatory subjects of bargaining have been or will be changed, and assert the right to negotiate over those changes.
Simply saying that bargaining unit members are “concerned about” or “resistive” to a change is not enough.
The words “request to bargain” are
usually sufficient.Slide28
WAIVERS BY INACTION
A sample demand to bargain letter:
The union has learned that the City is intending to impose a random drug testing program. Please consider this as a demand to bargain over the decision to impose such a program as well as over all mandatorily negotiable impacts of the decision, and a demand that the status quo be maintained until bargaining in concluded.
Love & Kisses, Slide29
WAIVERS BY INACTION
The need for a
timely
demand to bargain.
When does the “clock start ticking”? When the union knows of the intended change, or when the change is actually made
?
Does notice to individual bargaining unit members suffice, or must notice be given to the union itself?Slide30
WAIVERS BY INACTION
The effect of a waiver by inaction.
The permanency (or lack of permanency) of a waiver by inaction.
Example: A city charges the public and its employees $50 a month to park in City lots. In 2007, the City increases the fee to $75, and the union says nothing. Can the union propose a $50 rate in 2010 bargaining?
What if the union makes no proposal, and in 2013 the City increases the fee to $100. Does the union’s inaction in 2007 waive the right to bargain over the change in 2013?Slide31
WAIVERS BY INACTION
EMPLOYER’S OBLIGATION TO GIVE NOTICE
The employer is likely to be obligated to given notice of the intent to change mandatory subjects of bargaining.
In some cases, the obligation to provide notice is statutory.
In other cases, labor boards and commissions require notice, and in the absence of notice, excuse what would otherwise be an untimely demand to bargain.Slide32
MANDATORY SUBJECTS OF BARGAINING
Wages.
Hours of work.
Terms and conditions of employment.
The distinction between
mandatory
subjects of bargaining,
permissive
subjects of bargaining, and those that are
prohibited
from the bargaining process.
NLRB v. Wooster Division of Borg-Warner
, 356 U.S. 342 (1958).
Slide33
NEGOTIABLE WORKING CONDITIONS
Not all working conditions are negotiable.
As a
very
general rule, negotiable working conditions will involve or impact any of five broad issues:
Discipline
Job Security
Economic Impact
Off-Duty Life
SafetySlide34
REMEDIES FOR BREACH OF THE CONTINUING DUTY TO BARGAIN
A labor board or arbitrator will ordinarily order the reinstatement of the
status quo ante
, and will order the employer to make employees whole.
Examples of remedies
.
Work shifts
Promotional standards
Disciplinary standards
and penalties
Drug
testing
SubcontractingSlide35
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